NEGLIGENCE. The omission to do some thing which a reasonable man, guided by those considerations which ordinarily regu late the conduct of human affairs, would do, or the doing something which a prudent and reasonable man would not do. 11 Ex. 784. See Webb, Poll. Torts 537. The standard is not that of a particular man, but of the average prudent man; 3 Bing. N. C. 468.
The failure to observe, for the protection of the interests of another person, that de gree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. Cooley, Torts 630; Barrett v. Southern Pac. Co., 91 Cal. 296, 27 Pac. 666, 25 Am. St. Rep. 186.
The absence of care according to circum stances. See Philadelphia, W. & B. R. Co. v. Stinger, 78 Pa. 219 ; Texas & P. Ry. Co. v. Murphy, 46 Tex. 356, 26 Am. Rep. 272; Blaine v. R. Co., 9 W. Va. 252.
Such an omission by a reasonable person, to use that degree of care, diligence, and skill which it was his legal duty to use for the protection of another person from injury as, in a natural and continuous sequence, causes unintended injury to the latter. Bucki v. Cone, 25 Fla. 1, 6 South. 160.
The failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or the doing what such a person under the existing circumstances would not have done. Baltimore & P. R. Co. v. Jones, 95 U. S. 441, 24 L. Ed. 506.
Negligence, in its civil relation, is such an inadvertent imperfection, by a responsible human agent, in the discharge of a legal du ty, us immediately produces, in an ordinary and natural sequence, a damage to another. Whart. Negl. § 3. It is conceded by all the authorities that the standard by which to de termine whether a person has been guilty of negligence is the conduct of the prudent or careful or diligent man. Bigelow, Torts 261; Needham v. R. Co., 85 Ky. 423, 3 S. W. 797, 11 S. W. 306 ; Chicago & A. R. Co. v. Adler, 129 Ill. 335, 21 N. E. 846; Louisville & N. R. Co. v. Gower, 85 Tenn. 465, 3 S. W. 824.
The opposite of care and prudence, the omission to use the means reasonably neces sary to avoid injury to others. Great W. R.
Co. v. Haworth, 39 Ill. 353. Opposed to dili gence or carefulness. Smith v. Whittier, 95 Cal. 279, 30 Pac. 529.
The result of a failure to perform a duty ; Toncray v. Dodge County, 33 Neb. 802, 51 N. W. 235. It implies a duty as well as its breach, and the fact can never be found in the absence of a duty ; Little Rock & Ft. S.
Ry. Co. v. Lawton, 55 Ark. 428, 18 S. W. 543, 15 L. R. A. 434, 29 Am. St. Rep. 48.
When a contract creates a duty, the neg lect to perform that duty, as well as the negligent performance of it, is a ground of action for tort. Hence it is at the election of the party injured to sue either, on the contract or on the tort ; Robinson v. Thread gill, 35 N. C. 39; but there must be privity of contract between the parties, therefore an attorney who made a mistake in drawing a will is not liable to a person who, by the mistake, is deprived of a gift intended for him by the testator ; Buckley v. Gray, 110 Cal. 339, 42 Pac. 900, 31 L. R. A. 862, 52 Am. St. Rep. 88.
It is not a thing but a relation. It implies a duty to use diligence, and such a duty may be owed to one person and not to another; Boston M. R. Co. v. Sargent, 72 N. H. 455, 57 Atl. 688. There must be shown to exist some obligation or duty towards the plaintiff which the defendant has left undischarged or unfulfilled; Sweeney v. R. Co., 10 Allen (Mass.) 368, 87 Am. Dec. 644.
Due care is such attention and effort ap plied to a given case as the ordinary prudent man would put forth under the same circum stances ; this rule seems to meet the demands of every conceivable case. The general duty of diligence includes the particular duty of competence where the matter in hand re quires more knowledge or ability than any prudent man may be expected to have. If, in an emergency and to avoid imminent risk, the conduct of something generally intrusted to skilled persons, is taken by an unskilled per son, no more is required of him than to make a prudent and reasonable use of such skill as he actually has ; McNevins v. Lowe, 40 111. 209.