It is said that liability for negligence de pends on the probability of the consequences, s. e. its capability of being foreseen by a rea sonable man; Poll. Torts 37.
A person is expected to anticipate and guard against all reasonable consequences, but not against that which no reasonable man would expect to occur. See 5 Ex. 248. Some cases have gone to the extent of main taining an action in tort even where no at tempt has been made to perform a contract ; Robinson v. Threadgill, 35 N. C. 39; 11 Cl. & F. 1.
It is said not to be essential to constitute negligence that the damage caused might reasonably have been expected from the neg ligent act; Whart. Negl. § 16. Thus Gray, C. J., says, in Higgins v. Dewey, 107 Mass. 494, 9 Am. Rep. 63: "A man who negligently sets fire on his own land and keeps it negli gently, is liable to an action at common law for any injury done by the spreading or com munication of the fire directly from his own land to the property of another, whether through the air or along the ground, and whether he might or might not have reason ably anticipated the particular manner in which it was communicated." And in L. R. 6 C. P. 14, where a railway company left a pile of rubbisn in hot weather by the side of their track, and the pile was ignited by sparks from an engine, and the fire crossed a field and burned the plaintiff's cottage, Channell, B., said : "When there Is no direct evidence of negligence, the question what a reasonable man might foresee is of impor tance in considering the question whether there is evidence for the jury of negligence or not, . . . but when it has been once determined that there has been evidence of negligence, the person guilty of It is equally liable for its consequences, whether he could have foreseen them or not." Where a person unlawfully injures anoth er, he is liable in damages, without regard to the intention with which the act was done; Bruch v. Carter, 32 N. J. L. 554; Cate v. Cate, 44 N. H. 211; and good faith does not excuse negligence; Lincoln Buckmaster, 32 Vt. 652. As to the right of action for neg ligence resulting in the death of the injured person, see ACTIO PERSONALIS 1!elourrua CUM PERSONA; DEATH.
The damage caused must arise from inad vertence. If it be intentional, a suit for neg
ligence will not lie; the remedy is in tres pass and not ease.
One negligent person cannot escape liabili ty for his negligence because the negligence of another concurred In producing the inju ry ; Louisville, N. A. & C. R. Co. v. Lucas, 119 Ind. 583, 21 N. E. 968, 6 L. R. A. 193.
Whether negligence is divisible into de grees, corresponding to degrees of care in cumbent on the defendant, is a question which has elicited much discussion and a great variety of opinions. Speaking broadly, the various theories may be reduced to three classes : First, that there are three degrees of care required by the law, slight, ordinary and great; and consequently there are three de grees of negligence : gross, the failure to exercise ordinary care, and slight, or the failure to exercise great care; Redington v. Tel. Cable Co., 107 Cal. 317, 40 Pac. 432, 48 Am. St. Rep. 132; Chicago, B. & Q. R. Co. v. Johnson, 103 Ill. 512; First N. Bk. v. Gra barn, 85 Pa. 91, 27 Am. Rep. 628; I. & G. N. R. Co. v. Cocke, 64 Tex. 151; Sullivan v. Electric Light Co., 181 Mass. 294, 63 N. E. 904; Davis v. Ry. Co., 63 S. C. 370, 41 S. E. 468.
Second, that but two degrees of care are required; the care ordinarily exercised by a specialist in the matter in hand, and the care ordinarily exercised by a non-specialist in the same matter. A failure to exercise the former of these degrees of care is termed ordinary negligence, while a failure to ex ercise the latter kind of care is termed slight negligence; Wharton, Neg. 636.
Third, that there are no degrees of care or of negligence; that negligence is in all cases the same thing, namely, the absence of due care. According to this view, it is in each case practically a question of fact for the jury whether the proper degree of care has been taken, the jury being guided by a consideration of what a reasonable and pru dent man would have done under the circum stances; 11 M. & W. 115 ; The New World v. King, 16 How. (U. S.) 469, 14 L. Ed. 1019; New York C. R. Co. v. Lockwood, 17 Wall. (U. S.) 357, 21 L. Ed. 627; Purple v. R. Co., 114 Fed. 123, 51 C. C. A. 564; 57 L. R. A. 700; Culbertson v. Holliday, 50 Neb. 229, 69 N. W. 853.