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Negligence

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NEGLIGENCE may be considered as a test of either civil or criminal liability. As a test of criminal liability it need only be pointed out in this article that a gross and vicious disregard of the particular interests of others is not legally distinguishable, as a general rule, from a positive malicious intention to injure. Accordingly, where a man himself acts, or uses his own property carelessly and negligently, and without any care or caution not to injure others where injury is likely to ensue, he may be even criminally re sponsible for the consequences. Thus for example a trader may incur a criminal liability in case he should negligently sell an unwholesome article of food and an injury should result therefrom. And so may a contractor who so negligently constructs a building that it collapses and causes personal injuries; or a man who so negligently permits his house to fall into disrepair that sonic person is injured as a consequence. Negligence, considered as a cause of civil liability, is generally found in a breach of some duty or under taking, express or implied. And ultimately the question of its existence is usually one of fact for a jury. The question may be either one of law, where the case falls within any general and settled rule or principle ; or of fact, no such rule or principle is applicable to the particular circumstances, and where therefore the conclusion of negligence in fact must be found, or excluded by the jury.

The remedy for an injury caused by negligence is an action for damages. A mere accident will not support au action, for if, in the prosecution of a lawful act, a purely accidental casualty arises, then, according to an American ease, no action can be supported for an injury arising therefrom. In Manzoni v. Douglas a horse, for some unaccountable reason, bolted with its carriage in a public-highway and knocked down and injured a lady who was passing. She was unable to recover damages, for, in the words of Mr. Justice Lindley, " to hold that the mere fact of a horse bolting is per se evidence of negligence would be mere reckless guesswork." But leaving the cases where the primal facie accidental circumstances have excluded any presumption. of negligence, it is useful to stay and remark some cases in which res ipsa lognitur—the casualty itself raises the presumption of negligence, excluding that of pure accident, and lays upon the person sued the burden of rebutting the presumption of negligence. In Kearney v. L. B. 4. S. C. Ry., where a man was quietly walk

ing under a bridge belonging to the defendants and a brick fell out of it upon him and caused serious injury, it was held that the mere unexplained fact of the accident happening at all was prinal.ftwie evidence of negligence. And so was it in Byrne v. Boadle, where a barrel of flour fell front the third floor of a Liverpool flour dealer's premises and pitched upon the head of a harmless pedestrian below ; and so also in Scott v. London Docks Co., where a bag of sugar fell from a crane on to a man beneath.

But it is for the judge to decide whether in a particular case there is any evidence at all from which negligence can be reasonably inferred ; the jury decide, if the judge allows the case to reach them, whether such negli gence ought to be inferred. In an action against a jobmaster for negligence, proof that the carriage broke down, and that the plaintiff was greatly bruised, is prima facie evidence that the i*iry arose front the unskilfulness of the dnver, or the insufficiency of the carriage (Christie v. Griggs); so that if, whilst the carriage is being properly used for its purpose, it breaks down, it becomes incumbent on the person who has let it out to show that the break down was in the proper sense of the word an accident not preventible by any care or skill : no proof short of this will exonerate him (Hyman v. Nye). The duty of a railway company in regard to the safety of a passenger is laid down, in Redhead v. Midland Railway Co., as being " to take due care (in cluding in that term the use of skill and foresight) to carry the passenger safely, and is not a warranty that the carriage in Ithich he travels shall be in all respects fit for its purpose." Accordingly, as in the last-mentioned case, a company would not be liable to a passenger for damages in respect of in juries caused by his carriage leaving the metals and being upset, if the sole cause of the accident was the tyre of a wheel breaking because of a latent defect which could not be attributed to the fault of the manufacturer and could not be discovered before the breakage. If, however, a man sells an article with a specific warranty, and, in breach of that warranty, the article fails and causes an injury, the seller will be liable for the damages even though the defect that caused the failure was a latent one, and he himself had not been guilty of negligence (Randall v. Newsom).

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