NEGLIGENCE, in law, such want of due diligence and caution, though unaccom panied by injurious or criminal intent, as will give ground for a civil action for damages justify a criminal prosecution. The obligation to exercise caution may arise front a contract, express or implied, or from a rule or presumption of law; and the degree of care and caution which must be exercised varies greatly under different circumstances. The i theoreqealth is between gross negligence and fraud or criminal intent is clear, i but in practice it s often difficult to decide winch exists in the particular circumstances. Where a contract is for any reason contrary to law, negligence in carrying out its pro visions is, of course, no cause for action; and if an infant neglect to carry out a contract voidable on the score of infancy, he is not liable; though he may often be held for negli gence amounting to a tort end altogether outside of contract obligations. If the negli gence relate to cotntrrttra4ti party td that contract can sue, wheeVer. may be injured indirectly, while in torts it is the person receiving the actual injury who has a claim for damages. It is not enough to constitute a valid claim that there has been a, want of care; for, first, the negligent party may have been under no obligations to exercise care toward the person injured: thus, where a railway accident is brought about by the grossest negligence on the part of the company, if an individual passenger were injurer. who was obtaining his passage by fraud, he would have no claim, and, secondly, though the obligation might exist and negligence occur, yet it might be so slight com pared with the nature of the transaction as to make it obviously unjust to hold the negli •gent party. Again, if the injured party has himself been negligent and has thus "con tributed" to his own damage, he will have no action. This principle of "contributory negligence" is based upon public policy in part and in part upon the belief that a loss brought upon a plaintiff by his own act should not give him compensation. But it is not a good bar to an action to prove that, if the plaintiff had not done a certain act, he would not have been injured: the negligence, like that of the defendant, must have been actual, and cam required of him by some legal or natural obligation. It is generally held that the burden of proof is on the defendant as to contributory negligence; that is, the plaintiff or injured party will be supposed to have acted with due care until the contrary is shown. The doctrine of contributory negligence presents many difficult questions on trial, not so much as to the law, as in determining the respective rights of the parties and the degree in which -either was or both were negligent. By the common law, if death were occasioned by negligence, no action for damagescould be had by the near relatives; but by an English statute and by similar enactments in most of thestates of this country, suit may be brought by the administrator or executor in behalf of a husband or wife or next of kin, wherever death has been caused by negligence or wrongful act. Where the
original injury has been increased by the willful act or negligence of the plaintiff, ho cannot include the more remote damage in his claim. Thus, where physical injury is received and medical care is refused—the refusal resulting in permanent loss of health which would otherwise not have followed—there can be no for damages on that account. Every man is bound so to use his own property as not to injure another. Thus, the owner of animals which are vicious or have a contagious disease is bound to keep them under proper restraint; and the digger of a pit on his own land is liable, if it be near an unfenced highway and unprotected. Professional men are bound to exercise a fair average skill iu their profession. A superior is, iu general, responsible for the negli gence of an agent or employee when acting in the scope of his employment, but the ser vant is, in turn, liable to the master. Most important decisions as to the degree of care required of railroad corporations may be seen in Redfiekl on Railroads. In general it may be said that extraordinary care is demanded of all public carriers. As to negligence by public officers in performing their official duties, see OFFICE. Three degrees of care or diligence and corresponding degrees of negligence, are usually described, appor tioned to the relative circumstances and responsibilities of the parties: where one is required to use but slight care and is responsible only for gross negligence; where he is required to use ordinary care and is liable for ordinary neglect; and where he is required to use very great care and is responsible for but slight neglect. This classification is applied more especially to the subject of Bailments (q.v.). Where the bailment is for the benefit of the bailor, but slight care is required of the bailee; where the benefit is mutual, as in cases of hiring, ordinary care is required; and where the bailee is the only one who benefits by the bailment, extraordinary diligence is required and the slightest negligence will give cause for action. The exceptions to the second statement are the bailments to common-carriers and innkeepers where public policy requires that a very great degree of care should be exercised. Negligence, not coexistent with any criminal intent, may in certain cases constitute a crime. Thus, where the negligent act of one man results in the death of a second, the circumstances may make the first guilty of manslaughter. Su where an officer of the law allows a prisoner to escape, not having been tampered with, but through mere carelessness, he is criminally guilty. The subject of negligence may be found treated in detail in Shearman on Negligence, Addison and Billiard on Torts, Redfield on Railroad Lazo, and Bishop on Criminal Law.