NEGLIGENCE (Lat. acy/iyentio, from neg liaens, part. of nrgli fp re, arab' acre, to neglect, from me, not. -4- leacm, to gather). The omission to do something which a reasonable man guided by those elm,i.lerathals which ordi narily regulate the conduct of human a !fairs would do. or doing something which such a prudent and reasonable man would not do. Such is a ju dicial definition of the term, which is emoted by legal writers and judges more frequently than any other. Tt assinnes, what is often ex pressly stated in other definitions, that the thing omitted or done was in violation of a legal duty, and re.ulted in legal damage to t he 1.111' 10 W110111 the ditty was owed. The three elements to be considered, then, art': (1) proper can.; (2) legal duty; (3) legal harm.
l'itoera C stir, It will be observed that the standard of (ire recognized by the is that which a reasonable (nail would exercise in a given situation. Whether such care has been taken or not is generally a question of fact for the jury. It is true that if the evidence is not conllieting—if the story of the plaintiff is the same as that of the defendant, and if, in the opinion of the court, reasonable men would draw but one inference from the evidence—the question of negligence will be decided by the court. Hence a court often nonsuits a plaintiff on the ground that his o‘%11 evidence shows that the harm of which he complains was not caused by any negli gent net or omission of the defendant. As a rule, however, the jury are to determine whether the defendant's conduct was reasonably prudent or not. At the same time, the voila is bound to explain to the jury the legal rules bearing upon the subject, of which the most important are these: When a person undertakes the performance of a task which requires special skill, the failure to do all that any skillful person could reason ably be expected to do in such a case, considering all the circumstances. will amount to actionable negligence. If an ordinary mechanie undertakes to clean or repair a watch, he is bound to do the work with the skill and care of the ordinary watch cleaner or repairer.
The law not presume negligence on the part of any one. and throws upon him who alleges that another has been negligent the burden of proving it. Accordingly, a person who has been injured by a runaway horse, or whose property has been destroyed by a fire which started on his neighbor's land, must show, not only that the horse ran away or the fire started, but that it was through the owner's fault. At times, however, the situation of the parties when the injury oc curs is such as to overcome the ordinary presump tion of care on the part of the defendant. To such a situation the maxim is applied, (Ts ipsa thing speaks for itself." A rail road train jumps the tracks; a ease of goods falls out of a warehouse a live cinders is thrown out of a railroad engine of an elevated road upon a traveler in the street be low; in each ease we have a situation which would not exist, ordinarily, had the railroad company Or the W11 11.110111,1111111 n exercised ordinary
care. Hence the presuuiption of due care on his part is overcome, and judgment will pass against him unless he can show that, notwithstanding these atmearanees, he was really without fault.
Another important rule is that the amount of care required varies with the apparent risk. One set s fire to brush or rubbish 1111011 his premises and the fire spreads to his neighbor's land, doing dam age and hurting another. Whether he acted negli gently will &twind upon various. circumstanees, such as these: Was the weather dry or damp? From ghat direction and with what velocity was the wind blowing? What Vigilance and effort did he exorcise in trying to keep the lire on his own land? Again, without warning. one throws an article from a seatfohl to the ground, hitting and hurting another. Whether Ins aeted negli gently will depend upon the apparent risk inci dent to the act. If the Sealrold was adjoining a city street and the article was thrown into the thoroughfare, the act would be (dearly negligent. on the other hand, if the scaffold overhung pri vate premises, and there was no reason to believe that other persons were pretit'llt, the net would be In some cases the courts are disposed to hold persons liable for harm caused by their nets or omissions, whether these are negligent or not. The doctrine was laid down by an eminent English judge as follows: "Tile per son who for his 0W11 purpose brings on his laud, and collects and keeps there, any thing liable to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the consequence of its escape. Ile can excuse himself by showing that the escape was owing to the plaintiff's default, or was the consequence of the net of (lod." This view has not been adopted to any extent in the United States, the courts preferring the rule that one who brings dangerous agencies upon his land or under his control is not an insurer of the safety of others, but that he is hound to exercise a care over them commensurate with the ap parent risk in each ease. • The terms gross negligence, ordinary negli gence, and slight negligence are often used. al though the modern tendency is to discard them. When employed, the first represents the extreme of negligence—a want of care amounting almost to recklessness; the second is the absence of such care as an ordinarily prudent man exercises; and the third stands for the lack of eare re quired of one who is doing a favor to the injured party, such as keeping his property gratuitously.