Where one is liable only in case of gross negligence, the slightest care is enough, or as a degree of negligence, it is falling much below the average standard; Brennan v. Oil Co., 187 Mass. 376, 73 N. E. 472.
It is said that there should be no degrees of negligence or care, but that the rule should be such care as an average, ordinary prudent man would exercise under the cir cumstances. So one would fall short of average prudence in trying to set a leg which could only be done by professional skill, and so it is negligence for a layman to try it, given a situation that any prudent man knew required special knowledge. These rules would be relaxed in extreme, ex traordinary cases, as well as cases of neces sity ; Pollock, Torts 220. In dealing with prudence we always have to consider the ad vance of the science, learning and the partic ular locality, etc., and these incidents are the circumstances spoken of in the test; Mc Candless v. McWha, 22 Pa. 261.
"The tendency of modern judicial opinion is adverse to the distinction between gross and ordinary negligence ;" Bradley, J., in New York C. R. Co. v. Lockwood, 17 Wall. (U. S.) 357, 382, 21 L. Ed. 627; and the measure of duty owed by persons in the dis charge of their mutual relations is better expressed by the use of the term negligence as a negative definition, or due, reasonable or ordinary care ; Raymond v. R. Co., 100 Me. 529, 62 Atl. 602, 3 L. R. A. (N. S.) 94. No distinction between the degrees of neg ligence can be made so as to avoid the effect of a contract made by a Pullman porter re leasing a railroad from liability for negli gent injuries; Chicago, R. I. & P. R. Co. v. Hamler, 215 Ill. 525, 74 N. E. 705, 1 I. R. A. (N. S.) 674, 106 Am. St. Rep. 187, 3 Ann. Cas. 42 ; and injuries caused by gross neg ligence are included in a release which speaks only of "negligence"; id.
Proof of negligence. The first requisite for the plaintiff is to show the existence of the duty which he alleges has not been per formed, and then he must show a failure to observe this duty ; that is, he must es tablish negligence on the defendant's part. This is an affirmative fact, the presump tion always being, until the contrary ap pears, that every man will perform his duty; Cooley, Torts 659. It is not sufficient for the plaintiff to prove a state of facts consistent with the accident having been caused either by the negligence of the defendant or by that of the person injured. He must prove that it was caused by the defendant; 12 App. Cas. 41.
The litigant who bases his case or his defence upon negligence is bound to prove that his opponent was negligent. The pre sumption of law is that every person per forms his legal duty ; Huff v. Austin, 46 Ohio St. 386. Accordingly, the burden of proving negligence, in any litigation, rests throughout the case on the party asserting it, although, as in other cases, the burden of giving evidence may. shift from one side to the other, during the progress of the trial. The same evidence may or may not estab lish a prima facie case of negligence on the part of the defendant, according as it shows a breach of contract on defendant's part; Stokes v. Saltonstall, 13 Pet. (U. S.) 181, 10 L. Ed. 115; as where a railroad train is suddenly jolted; Piehl v. Ry., 162 N. Y. 617, 57 N. E. 1122 ; or a steamship is driven with extraordinary force against a wharf; In land & S. C. Co. v. Tolson, 139 U. S. 551, 111 Sup. Ct. 653, 35 L. Ed. 270 ; or a train is derailed by obstacles on the track, or by de fective rails or defective rolling stock ; New Jersey R. Co. v. Pollard, 22 Wall. (U. S.) 341, 22 L. Ed. 877; and a passenger is in jured; in 'such cases the accident itself af fords prima facie evidence of the carrier's negligence, for he contracted to carry the passenger safely. Had a servant of the car rier been injured in the same accident, a different rule would have obtained, for the employe would be bound to establish, as an affirmative fact, that the employer had been guilty of negligence ; Patton v. R. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361.
One who is killed at a railroad crossing is presumed to have done his duty in exercising due care and not to have been guilty of con tributory negligence; Hanna v. R. Co., 213 Pa. 157, 62 Atl. 643, 4 L. R. A. (N. S.) 344 ; and in the absence of evidence to the con trary, a railroad company is also presumed to have done its duty and this presumption roust be overcome before any recovery can be had; id. Such presumption is destroyed if it appears that if the person killed had looked and listened on approaching the crossing he would have seen and heard the train ; Carlson v. R. Co., 96 Minn. 504, 105 N. W. 555, 4 L. R. A. (N. S.) 349, 113 Am. St. Rep. 655; or if it is incompatible with the conduct of the person to whom it is sought to be applied; Wabash R. Co. v. De Tar, 141 Fed. 932, 73 C. C. A. 166, 4 L. R. A. (N. S.) 352.