Different writers have divided negligence in different manners, some insisting that there are only two kinds of negligence; ' culpa levis ' and ' culpa lata '; others dividing the subject into three groups; ' culpa lata', ' culpa ' (including ' culpa levis '), and ' culpa levissima '; but it seems upon the whole to be held in the English and American Courts, that there are three sorts, of negligence.
The sort of care to be taken depends upon the duty or position of the parties. The duty may be
and accordingly the care required is
Negligence may thus be more than ordinary, or less than ordinary. Gross negligence may be deemed to be the want of slight diligence, ordinary negligence the want of ordinary diligence, and slight negligence the want of great diligence. Hence we have the three following divisions:
In cases of pure tort there is only one standard of conduct, that of ordinary diligence; and only one criterion of diligence, the conduct of a prudent man.
The law demands more than ordinary care in the following cases:
Wherever a person does something for his own advantage, he must take something more than ordinary care to avoid injuring the rights of another. Thus, a person occupying property is bound to take care that he deals with it so as not to injure persons being where they have a right to be.1)
Persons who take money for admission to public places, stands at races etc., are bound for many reasons to exercise great care.2) There is in every invitation a sort of implied warranty of safety, by which the person invited is put off his guard, and prevented from examining with caution the position in which the inviter has placed him.
A volunteer also, that is to say, a person voluntarily doing something although not paid fordoing so, nor requested, is bound to take more than ordinary care, for he has chosen to intrude himself into the affairs of another.
It is obvious that an improper use by one man of his land, i.e., a user in excess of his rights, may cast an additional burden on to his neighbour, and thereby curtail the latter's legitimate enjoyment of his property, or cause him grave personal inconvenience, or even danger. Holt, C. J., laid down the strict principle of law: sic utere tuo ut alienum non laedas (every one must so use his own as not to do damage to another), and, according to this, whoever does any act, whether negligently or not, on or with his own property, whereby damage is done to the property of another, is held responsible for it.3) The invasion of one's established right will in general per se constitute an injury, for which damages are recoverable. But where the above maxim is applied to landed property, it is subject to a certain modification, it being necessary for the plaintiff to show only that he has sustained damage, but that the defendant has caused it by going beyond what is necessary in order to enable him to have the natural use of his own land. If the plaintiff only shows that his own land is damaged by the defendant's using his land in the natural manner he cannot succeed.4)
The following propositions are of wide application in connection with this subject, well established by the authorities.
Water: In Fletcher v. Rylands the defendant had constructed a reservoir on his land. Underneath the reservoir so constructed were certain disused mining shafts, which communicated with mines under the adjoining land, of which the plaintiffs were lessees. The defendant was not personally guilty of any negligence, and employed competent persons to construct the reservoir, but it was not made sufficiently strong, having regard to the existence of the disused shafts, to bear the pressure of water, which burst through the shafts and flooded the plaintiff's mine. Held, that the plaintiff was entitled to damages in respect of the damage caused thereby to his mine. Blackburn, J., said . “ We think that the true rule of law is, that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape And, upon authority, this, we think, is established to be the law whether the thing so brought be beast, or water, or filth, or stenches.” If a man chooses to make any quantity of fish-ponds or mill-ponds, or artificial lakes or pleasure waters, or fountains or anything of that kind on his own land, he is at liberty to do so, provided that when he has finished doing so he does not increase the burden upon his neighbours.8) The defendant in erecting a house put pipes down to convey water from the roof, but did not connect them with any drain. The water came through the pipes into the cellar of the house, collected there, and flowed from thence into the cellar of the adjoining house of the plaintiff, which was on a lower level; it was held that the case came within the principle of Fletcher v. Rylands, and that plaintiff was entitled to damages in respect of the injuries caused thereby.9) The principle of Fletcher v. Rylands was held to apply to the escape of an electric current from the land of the party creating it.10) But as there was statutory authority, in this case, to use electrical power by a tramway company, the electrical disturbance caused in the wires of a neighbouring telephone company did not render the tramway company liable. The principle of Rylands v. Fletcher, applies to a proprietor who stores electricity on his land if it escapes therefrom and injures a person or the ordinary use of property. It does not apply to the case of injury done to a peculiar trade apparatus unnecessarily so constructed as to be affected by minute, currents of the escaping force. In an action by a telegraph company for disturbances, in the working of their submarine cable, caused by an escape of electricity stored by the respondents for the working of their tramway system; it was held, in regard to that section of the tramway which had not been constructed under statutory authority, that Rylands v. Fletcher, did not apply, because the disturbances only resulted when the cable was constructed without certain precautions, which had subsequently secured its immunity.11) If a man raises his own land artificially, and in consequence rain water falling on the land makes its way through his wall on to his neighbour's land, an action will lie in respect of the damage, if any, done thereby.12) If a man erects an artificial mound against the wall of his neighbour's house, and thereby causes damage and moisture to injure it, he is liable in an action for the damage resulting from it.13) If a man erects a cornice on his house which projects over his neighbour's land, by reason of which rain water flows into the latter's garden and causes damage, an action will lie.14)
It was held in a, case that a, cistern being an ordinary domestic apparatus of general use in houses, the owner was not liable for the damage ensuing in the event of its overflowing on to a neighbouring house, without any negligence being attributable to him.15)
Where a landowner by working his mines caused a subsidence of his surface in consequence of which the rainfall was collected and passed by gravitation and percolation into an adjacent lower coal mine, it was held that the owner of the latter could sustain no action. For the right to work mines is a right of property, which when duly exercised begets no responsibility.16)
Indian cases: The plaintiff sued for damages caused to his land by the bursting of a bund erected by the defendant, it was found that the bund had been made in a lawful manner, and the breach was owing to no fault of the defendant, so the defendant was held not to be liable.17) The defendant closed up the outlets of a bank upon his own land, whereby the surface drainage water had immemorially flowed from the plaintiff's land, into and over the defendant's land, and so escaped. By reason of the closing of these outlets the water was unable to escape, and the plaintiff's land became flooded and the crops therein damaged. Held, that the defendant was liable for the damage caused.18) A suit for damages will lie against a proprietor who pens back the water of a stream by erecting a bund upon his land, so as to innundate the land of his neighbour, without his license and consent.19) A suit for damages, based on an allegation that defendant had neglected to drain his garden so as to, prevent water from collecting there and injuring the adjoining property the plaintiff, is not maintainable as the owner of property is under no legal obligation to incur expense upon it for the benefit of his neighbours, where it has not been altered in character by his acts or with his permission in such a way as to expose them to any injury.20)
Other things: The defendants planted on their own land, but so close to the boundary, as to project into the adjoining meadow in the occupation of the plaintiff, a yew tree, and the plaintiff's horse whilst feeding in the meadow ate of the portion of the tree which projected and died in consequence, it was held that the defendants were liable for the value of the horse.21) But if poisonous leaves do not extend to his neighbour's boundary, he is not liable; for his legal duty to his neighbour stops with his boundary, within which he is free to do or grow whatever he wishes, so long as the boundary is not overpassed. Thus, where the plaintiff's cattle ate of the branches of a yew tree no part of which extended over his field, and the defendants were under no liability to fence against the plaintiff's, it was held that they were not liable.22) The defendant's land adjoining the plaintiff's was fenced by a wire rope repaired by them. Through exposure the rope decayed and pieces of it fell on the grass on the plaintiff's laud, whose cow in grazing swallowed one of the pieces and died in consequence. The defendant was held liable to the plaintiff for the loss of the cow.23) If a man collects game on his land to such an extent as to injure his neighbour's crops, an action will lie.24)
Where an occupier of land allowed thistles, which he had not brought on to his land, but which were its natural product, to seed, so that the seed was carried on to the adjoining land which was thereby injured; it was held that no action lay for the damage caused thereby.25)
But a person is not liable if damage is done owing to the following causes.
Exception 1: The defendant had a series of artificial lakes on his land, in the construction or maintenance of which there had been no negligence. Owing to a most unusual fall of rain, so great that it could not have been reasonably anticipated, some of the reservoirs burst and carried away four country bridges. Held, that the defendant was not liable, inasmuch as the water escaped by the act of God. The present case is distinguishable from that of Fletcher v. Rylands, in this that it is not the act of the defendant in keeping this reservoir, an act in itself lawful, which alone leads to the escape of the water, and so renders wrongful that which but for such escape would have been lawful. It is the supervening vis major of the water in the reservoir (which in itself would have been innocuous), that causes a disaster,34)
A water-company whose apparatus was constructed with reasonable care, and to withstand ordinary frosts, was held not to be liable for the bursting of the pipe by an extraordinary severe frost.35)
Where the defendant's line was displaced by an extraordinary flood, and by such misplacement injury was done to the plaintiff it was held that no action could be maintained against the defendants.36)
Indian cases: The plaintiff had sued the defendant without averring negligence, because a reservoir, which was the property of the latter, had burst and the flood caused by its bursting had destroyed the permanent way in places and done other damage. The Judicial Committee held that the defendant in the case before them possessed, as regards this reservoir, powers analogous to statutory powers and could not, therefore, be held liable unless negligence were proved.37)
Where a defendant shows a prescriptive right to maintain a bund, and uses all reasonable and proper precautions for its safety, he cannot be made liable for damage caused by the escape or overflow of water on to the lands of others and the consequent injury of the crops thereon, if the escape or overflow be caused by the act of God or vis major.38)
Exception 2: Where the reservoir of the defendant was caused to overflow by a third party sending a great quantity of water down the drain which supplied it, and damage was done to the plaintiff, it was held that the defendant was not liable. It seems to me to be immaterial where this is called a vis major or the unlawful act of a stranger; it is sufficient to say that the defendant had no means of preventing the occurrence.39)
Exception 4: The defendant was the plaintiff's landlord, and was living on the floor above him. Some rats gnawed a, rain-water box maintained by the defendant for the benefit both of himself and the plaintiff, and the water running through injured plaintiff's goods below, it was held that no action lay.40)
The plaintiffs were tenants of the ground floor and basement of a house of which the defendant was owner, the upper floors being let out to separate tenants. The different floors were supplied with water from a cistern at the top of the house. The branch service pipe supplying the first floor burst, and the basement was flooded. Held, that the defendant was not liable.41) The plaintiff occupied the ground floor and the defendants the second floor of the same house. In the defendants premises was a water closet, to which they alone had access, and which closet was put up by the landlord before the plaintiff came into occupation. The waste pipe of the closet, without any negligence on the part of the defendants, got stopped up with paper, which caused the water in the pan to overflow and so to flood the plaintiff's premises. The defendants were held not liable on the above ground. A person who takes a floor of a house takes it subject to the ordinary risks arising from the use of the rest of the house as it stands; and one who merely continues to use the rest of the house as it stands, and in the ordinary manner, is not liable for consequences.42)
The defendant was the owner of premises to which water was laid on, and he had a cistern on the fourth floor. The plaintiff became tenant of the ground floor, and took his supply of water from the defendant. A leakage from the cistern having been noticed by the plaintiff, he informed the defendant, who instructed a competent plumber to remedy it. In consequence of the negligence of the plumber an overflow occurred, which damaged the plaintiff's goods. Held, that the defendant was not liable, since the plaintiff had assented to the water being on the premises, and therefore the defendant, by instructing a competent plumber to remedy the leakage, had discharged his duty to the plaintiff.43)
“ The care of a prudent man,” required from house holders, owners, occupiers of land, and owners and occupiers of structures (which include houses, ships, carriages, engines, machinery, and the like), differs according as the persons, in regard to whom it has to be exercised. These persons fall into following categories:
Persons entering on property, without permission, are distinguished into two classes:
The care required in regard to class (1) is to secure persons so straying upon the premises from damage arising from the condition of the premises, or from anything done upon them in the immediate vicinity of the road or place from which they have strayed.
A, a builder, left the area of an unfinished house open and unfenced against the road on which it abutted. B, lawfully walking at night along the thoroughfare, passing close by the premises fell into the area. A was held to have failed to exercise the care of a prudent man.44) A footpath had been made by A & Co. (railway contractors), connecting a line they were constructing with an existing path, but they left the new path undistinguished from the old one, which they should have fenced off at the point of divergence. B coming along at night, being unable to discover which was the right path to use, took the old one, and was seriously hurt by falling over an unfinished bridge. A & Co. were held to have failed to exercise the care of a prudent person.45)
“ The care of a prudent man ” required in regard to class (2) is to avoid endangering the safety of such persons by concealed dangers in the nature of a trap, or such as would be likely to punish intruders in a cruel manner, and one altogether disproportioned to the injury done by the mere trespass.
A has a spring-gun in his premises which would shoot persons trespassing. B's dog having strayed off the road, B goes in search of it into A's premises without asking or obtaining A's consent. The spring-gun goes off and seriously wounds B. Here A fails to exercise the care of a prudent man in respect to trespassers, whether negligent or intentional.46) On the other hand, where the plaintiff had notice of the danger, the defendant was held not to be liable.47) If a trespasser tumbles into a hole or unguarded pit, he has no remedy for an injury suffered thereby, as the hurt is in such a case caused by his own carelessness and misconduct.48) A was passing along a public footway, and straying from the path fell into an unfenced reservoir in B's premises, and sustained harm. Here A acted as he did through negligence, as the reservoir was at some distance from the footway. The reservoir, too, was made and maintained for proper purposes, and not for the purpose of punishing intruders. B did not, in this case, fail to exercise, as regards A the care of a prudent man.49)
Towards persons coming by permission, but solely of their own choice, and on their business, and guest “ the care of a prudent man,” on the part of one who is a householder or other description of person mentioned above, is
A gave permission to B to cross his yard, which was traversed by several routes. In a part of the yard was a hole which A usually kept covered. One night A uncovered it, and B, who was unprepared for its being uncovered, took the same route as usual, and sustained damage from falling into the hole. A in this case had not exercised the care required.54) There was a private way across A's premises which B used with A's consent. C had also been permitted to deposit slate and other materials on the same road at night. B's horse driven along the road at night, was injured by falling over the materials. A was held answerable to B. Had B been a trespasser there would have been contributory negligence on his part, but he was lawfully on the road and without negligence, and A was bound to take the care of a prudent man that he did not meet with harm, by warning him of what was a hidden danger in the nature of a trap.55)
A was defendant's guest. When he was leaving the house a, loose pane of glass fell from the door, as he was pushing it open, and cut him. It was known that the glass was in a dangerous state. It was held that there was , no want of due care on the part of the defendant.56)
The plaintiff was a little boy of four, who one day accompanied his sister to the defendant's house, where she was going on business. The girl went up the defendant's steps all right, but the little boy tumbled through a gap in some railings out of repair into the area below. It was held that the action could not he maintained, as the little boy's position, could be placed no higher than that he was there lawfully, and was not a trespasser; and, that being so, the only duty on the part of the defendant towards him was to take care that there was no concealed danger and of this there was no evidence.57)
In regard to persons induced to come on the business and interests of the occupants alone or of themselves and the occupants, “ the care of prudent man ” is the care required to keep the premises in a reasonably safe condition to secure such persons from harm from anything about the premises, hidden or open to observation, making it dangerous for such persons, using reasonable care, to be upon the premises for the purposes for which they are induced to come.58)
A person who goes upon premises which concerns the occupier and upon his invitation, express or implied, is entitled to expect that the occupier shall use reasonable care to prevent damage from unusual danger which he knows, or ought to know.59)
Visitors on business which concerns the occupier of premises may maintain an action for any injury caused by the unsafe state of the premises.60)
The inducement may be either by express or implied invitation. The expression “ persons coming by inducement ” includes customers, persons calling for orders, persons doing work about the structure, and others; but does not include guests. A, a, journey-man gasfitter, was testing some new burners in B's sugar factory. On the premises was an unfenced shaft, used by B in working hours for raising and lowering sugar. Without want of reasonable care on his part, A, while on the upper floor, fell through this shaft. B had, in this case, not exercised the care of a, prudent man towards A, who was induced to come on the business and interest of B. As A was not accustomed to the premises B should have had the shaft fenced off, or have called A's attention to the danger in such a way as to impress upon him the necessity of care to avoid it.61)
The plaintiff, a licensed waterman, having complained to the person in charge that a barge of the defendants was being navigated unlawfully, was referred to the defendants foreman. While seeking the foreman he was injured by the falling of a bale of goods so placed as to be dangerous, and yet to give no warning of the danger; it was held the defendants were liable.62)
Dock owners who erected a staging round a vessel in their dock for the purpose of repairing it, were responsible for injuries occasioned to a workman employed by the shipowners in repairing the vessel. The staging had been handed over to the shipowners and was in their control. But it was considered that persons coming on business to the vessel in the dock of the defendants came on business in which the defendants were interested, and that the persons so coming must be considered as invited by the dock owner.63)
Where the plaintiff was injured while going over a gangway which the defendants had provided for the passage from their dock to vessel lying adjacent, and the gangway was in an insecure position to the knowledge of the defendants, it was held that the defendants were liable as the plaintiff went on board a ship in the dock at the invitation of one of the ship's officers.64)
Defendant chartered for a voyage a vessel which was at the time at sea and in ballast. The charter party declared that she was in every way fit for the service. The defendant, after she was put at his disposal in dock, contracted with a stevedore to load it. The stevedore engaged the plaintiff amongst others to carry out the work. The plaintiff, in the course of this work, had to descend a ladder leading into the hold. It came adrift, and the plaintiff fell, sustaining injuries. Held, that the defendant was liable as it was his duty to make some inspection of the vessel before allowing the stevedore and his men to go on board her.65)
In order to succeed in an action of this kind, the plaintiff must prove a duty on the part of the defendant towards him to keep the premises in a reasonably secure condition, and, further, that the injury was the direct result of a breach by the defendant of such duty.66)
In regard to persons lawfully passing by the premises, the care required may be expressed in the same way as that required in the case of persons intentionally entering upon the premises without consciousness of wrong-doing, it extends to guarding against what may happen just beyond the premises, on the road, or other place, where a person passing by may lawfully be, instead of just within the premises.
If a person maintains a lamp projecting over, a highway for his own purposes, it is his duty to maintain it so as not to be dangerous to the passengers; and if it causes injury owing to want of repair, it is no answer on his part that he had employed a competent person to repair it.67)
Where a railway company is bound by statute to shut the gates of a level crossing while a train is approaching, and omits to do so, it invites persons to cross the line, and thereby puts them off their guard, and is liable for the injuries which ensue.68) It is a matter of common sense that a person who is crossing a railway line upon a level should look before he crosses; but, possibly, if there were a statutory duty upon the railway to keep gates or guards, the defendants might mislead the plaintiff into a feeling of security, and his not looking, when the gates were open or unguarded, might not be evidence of negligence.69) The plaintiff must allege and prove, not merely that the company was negligent, but that its negligence caused or materially contributed to the injury.
Smith's death took place at a railway crossing on the defendants railway. There was a cottage on the down side of the crossing occupied by man named Judges, whose duty it was to open and shut the gates for the purpose o£ allowing carriage traffic to pass. It was also his duty on hearing a gong sound, which announced the approach of a train, to go out and signal to the driver if the line was clear. The only way of getting to Judges' cottage was across the line. Smith, who lived on the opposite side of the line to that on which the cottage stood, on the night of the accident, came to the cottage to inquire whether his wife was there. On being told that she was not, he went out again. Within a, every short time after he had left, the whistle of the uptrain was heard. Judges did not go out to signal the train and the engine driver did not slow down. The latter, however, whistled 200 yards before he came to the crossing, he was travelling at the rate of 35 to 40 miles an hour, and he ran over the deceased at the crossing. The negligence alleged was the omission of Judges to come out to signal the train. The company was held liable.70)
S attempted to cross a railway line at night at a spot where persons were in the habit of crossing with the acquiescence of the company. At the time he attempted to cross there was a train standing still on the up line in such a position as to prevent a person on the line behind it from seeing anything approaching on the down line. S came from behind the train on the upline, and, on crossing on to the down line, was struck by an express train and killed. Held, that the company was liable for negligence.71)
The plaintiff, a medical doctor, whose time was of pecuniary value, was, while driving along a public highway, detained for twenty minutes at a level crossing by the unreasonable and negligent delay of the servants of the defendant Hallway company in opening the gates at the crossing. Held, that the defendants were liable in damages to the plaintiff for such delay.72)
The announcement of the name of a station, coincident with the stoppage of the train thereat, and its coming to a complete standstill is, in the absence of a warning to the passengers to keep their seats, an invitation to alight, at all events after such a time has elapsed that the passenger may reasonably infer that it is intended he should get out, if he professes to alight at that particular station. An invitation to alight on the stopping of a train without any warning of danger to a passenger, who is so circumstanced as not to be able to alight without danger, such danger not being visible or apparent, amounts to negligence on the part of the railway administration. Reasonable means of alighting from vehicles must also be provided by a carrier, and he is responsible for any neglect of this duty.
Where a train, in the last carriage of which the plaintiff was, arrived at the terminus but drew up short of the buffers, and the portion of the platform opposite the plaintiff's carriage was bevelled of, leaving a space of 18 inches between it and the carriage, and, the guard having opened the door without giving any warning of the state of matters, the plaintiff fell in getting out, it was held that the conduct of the guard amounted to an intimation that the plaintiff could alight safely, and that the latter was entitled to recover.73)
The mere stopping of a train and calling out the name of a station is not in all cases, evidence of an invitation to alight. The plaintiff was a passenger by the defendants railway to Bromley station. As the train arrived there she heard “ Bromley, Bromley ” called out several times. The train was brought to a standstill, but not before it had partly overshot the platform. As the plaintiff was in the act of getting out, and when her foot was on the step of a carriage, the train was put back with a jerk, and she fell on the platform. The period occupied by the stoppage of a train was little more, than momentary, and the plaintiff knew the station well; it was held that there was no evidence of negligence on the part of the defendants.74)
Although the fact of a train or some of the foremost carriages attached to it having overshot the platform is prima facie proof of negligence or want of skill on the part of the railway servants, it does not relieve the passengers in such carriages from the obligation of taking reasonable and ordinary care for their own safety by satisfying themselves that there is a platform or other safe place for them to stand upon before they alight from the carriages, and to maintain an action in such cases it is incumbent upon the plaintiff to prove that he did exercise that degree of care, and that there was no contributory negligence on his part. It has been held that a railway company not bound to have a platform as long as any of its trains but is only bound to do what is reasonable in that respect.75)
Upon a train on the defendants' line of railway arriving at a station, the two or three foremost carriages, in one of which the plaintiff was a passenger, overshot the platform at the station, and where the carriages stopped, the line of railway was on an embankment some height above a road-way. The night was rather dark, and there was no light in the carriage, and no stationary light on the platform; nor was there any fence on the top of the embankment between it and the road-way beneath. When the train stopped, the plaintiff, knowing that the carriage had overshot the platform and without waiting to see whether it would be backed, got out of the carriage in the dark, and in doing so missed his footing and fell forward over the embankment into the road-way beneath. It was held that on the facts stated the railway company were not guilty of negligence, and were not liable for the injuries sustained by the plaintiff.76)
Indian case: The plaintiff was a passenger travelling on the defendants' railway, and received severe injuries from a fall which he experienced in stepping upon the platform when the train stopped. Held, that the railway company was guilty of negligence in not keeping the station properly lighted, in allowing the train to overshoot the station, and in not warning the plaintiff against alighting; also that the injuries sustained by the plaintiff were caused by the negligence in question, and that the plaintiff did not by his own want of care contribute to the accident.77)
Where it is evident that persons hold themselves out to be persons of skill, they are bound to exercise skill. It is not enough that the defendants have acted bona fide and to the best of their skill and judgment. They are bound to conduct themselves in a skilful manner. Of this class are:
Where a person is entrusted by a statute or charter, or prescription, with the execution of certain duties, the law demands of him that he should use something more than ordinary care in the performance of his duties. In most cases, it is very reasonable that this should be so, for the person so interested has received from the legislature some benefit which has induced him to undertake the burden of the duty; and even where this may not be so, where a statute enjoins a person to do a thing, it would be absurd to suppose that the thing may be done any how, and yet the person not be liable, and it would be very reasonable to suppose that the law intends that the thing shall be done with more than ordinary care.
In the execution of a duty imposed by a statute, a person is bound to use his best skill and diligence.78) He is bound not only to act bona fide, and to the best of his skill and judgment, but he is bound to conduct himself in a skilful manner, and to do all that any skilful person could reasonably be required to do.79) And it seems clear that he cannot excuse himself, as in the case of a person failing to perform a non-statutory duty, by saying that he employed a competent contractor.80)
Where the duty is discretionary merely, the corporation are not liable for omitting to do what they are not bound to do; but if they undertake to perform a duty, or to do a work which they are not bound to do, they must exercise ordinary care.
It has been held, after many conflicting decisions, and is now settled law, that corporations are liable for negligence, whether they derive any ultimate pecuniary benefit or not from the performance of the duty imposed upon them.81)
Directors of a company ought to show more than ordinary care towards the share-holders, for they are persons holding themselves out as capable of directing complicated affairs and inviting persons to trust their money to the company which they profess to direct. They are unlike trustees, who undertake irksome duties for no pay or advantage, for they are always either paid or deriving some benefit or advantage from their position. They must show diligence which good men of business are accustomed to show.
Where the defendant company had been guilty of a wrongful act of omission in not registering the plaintiff's name in their books, and also of a wrongful act of commission in declaring shares to be forfeited, it was held that both acts were the proper subject of an action.82)
A common carrier has been defined to be one who undertakes for hire or reward to transport the goods of such as choose to employ him from place to place.83) Common carriers are generally of two descriptions.
Of the former description are the proprietors of stage-waggons (omnibuses), stage-coaches, and railroad cars, which ply between different places and carry goods for hire.84) So are truckmen, waggoners, team masters, cart-man, and porters, who undertake to carry goods for hire, as a common employment, from one town to another.85) or from one part of a town or city to another.
Of the latter description are the owners and masters of ships whether they are regular packet ships, or carrying smacks, or coasting-ships, or other ships carrying general freight. So are the owners and masters of steam-boats engaged in the transportation of goods for persons generally for hire.
A common carrier is bound:
If the carriage is to be by water, carriers are bound to provide a ship tight, staunch and strong, and suitably equipped for the voyage, with proper officers and a proper crew; to proceed without deviation to the proper port; to expose the goods to no improper hazards; to guard against all injuries incident to the property, by reasonable care in preserving the goods from the effects of storms or bad air, of leakage, and of embezzlements.
In short, every carrier is bound to use all the diligence which prudent and cautious men, in the like business, usually employ for the safety and preservation of the property confided to their charge.
A common carrier is responsible for all losses, except those occasioned by the act of God or the King's enemies. He is not only responsible for his own acts but also for the acts of his servants and of other persons in his employment.86) He is also responsible for the wrongful acts of mere strangers, notwithstanding they are not personally, or by their servants, guilty of any negligence or omission of duty.
But the carrier may limit his liability by means of special contract or conditions.87)
As soon as the goods have arrived at their proper place of destination, and are deposited there, and no further duty remains to be done by the carrier, his responsibility as such ceases. He then becomes, as to the goods, a mere warehouseman.
Carriers of passengers are not, like carriers of goods, insurers; and, accordingly, before one of their victims can recover damages, he must prove a breach of duty. Their duty is to take due care (including in that term the use of skill and foresight) to carry the passenger safely, and is not a warranty that the carriage in which he travels shall be in all respects fit for its purpose.88)
They are of two descriptions:
The first and most general obligation on their part is to carry passengers whenever they offer themselves, and are ready to pay for their transportation. They are not at liberty to refuse a passenger, if they have sufficient room and accommodation.89)
Duties: The proprietors are bound to provide road-worthy vehicles, suitable for the safe transportation of the passengers. They are bound to provide careful drivers, of reasonable skill and good habits, for the journey; who must be well acquainted with the road they undertake to drive.
Liabilities: These naturally flow from their duties. It has been held that passenger-carriers bind themselves to carry safely those whom they take into their coaches, as far as human care and foresight will go, i.e., for the utmost care and diligence of very cautious persons; and, of course, they are responsible for any, even the slightest neglect.90) They are liable for any accident which may arise from any latent defect in the vehicle which might be discovered by a minute examination.91) If any danger or injury occurs to the passengers they will be responsible to the full extent thereof.92) Railway companies are bound to use proper care and skill in Carrying their passengers; they are not liable as common carriers of passengers independently of negligence. But, passenger carriers, not being insurers, are not responsible for accidents, where all reasonable skill and diligence have been employed.
In regard to their liability for the baggage of passengers they stand upon the ordinary footing of common carriers. Baggage means such articles of necessity or personal convenience as are usually carried by passengers for their personal use, and not merchandise or other valuables, although carried in the trunks of passengers, which are not designed for any such use, but for other purpose, such as a sale and the like.93) If carriers of passengers carry goods also for hire, they are in respect to such goods to be deemed common carriers and responsible accordingly. But in all such cases, it must be clear that the proprietors hold themselves out as persons exercising a public employment, and as being ready to carry goods for hire for persons in general.
Defences: In reply to a suit for damages for injury caused a carrier may put forward any of the following pleas:
Defendant liable: A man sent a cow by train from Doncaster to Sheffield. When it got to Sheffield a porter rather unadvisedly released it; it ran into a tunnel and was killed. The restiveness and stupidity of the cow was undoubtedly the real cause of its death, but the porter ought not to have been in such a hurry to let it out; and on this latter ground the company were held responsible.94)
Defendant not liable: Where an accident was caused by a latent defect in a vehicle, which it was impossible, with the exercise of all due care, caution, and skill to have discovered; it was held that the railway company was not liable.95) Plaintiff bought a pole for his carriage from the defendant, a coach builder. The pole broke in use, and the horses, becoming frightened, were injured. The jury found that the pole was not reasonably fit for the carriage, but that defendant was not negligent. Held, that the defendant was liable.96) The plaintiff had a bullock which he wanted to send by railway from a small station near Monmouth to Northampton. The beast was duly loaded to the plaintiff's satisfaction in one of the defendant company's trucks, but on the journey it managed to escape, and got killed on the line. The company were held not liable, for the disaster was due to the inherent vice of the beast.97) Where the plaintiff employed the defendant to remove her goods in a cart, and with the consent of the defendant's carman rode upon the cart, which broke down, it was held that she was not entitled to recover for the personal injury to herself, for there was no contract to carry the plaintiff safely, but only her goods, and by getting into the cart she became a trespasser.98)
Indian cases: The plaintiff entered a carriage on the defendants' railway at Surat with the purpose of proceeding to Bombay. By an oversight, without any fraudulent intent, he omitted to procure a ticket at Surat. On arriving at Nowsari, he applied to the station-master for a ticket to Bombay, but was refused; he was, however, allowed by the defendants' servants to proceed in the same train to Bulsar, where he again applied for a ticket and was again refused, but was directed by the defendants' servants to get into the train and not leave it again. At Dhandu he again got out and applied for a ticket to the station-master. During a discussion between the plaintiff's master and the station-master, the plaintiff at the direction of his master, re-entered the train. Ultimately the station-master refused to issue a ticket, and ordered the plaintiff to get out of the train; and, on his not complying with the order, sent a sepoy, who forcibly removed the plaintiff from the carriage. In an action to recover damages for the forcible and illegal removal and detention of the plaintiff, it was held that the absence of a fraudulent intention did not make the entry into the carriage less unlawful, and consequently the plaintiff started from Surat as a trespasser; that the conduct of the railway officials at the stations between Surat and Dhandu, if it amounted at all to leave and license to the plaintiff to proceed without a ticket, could only operate as such until the train stopped at the next station; and that there was no legal obligation on the station-master to issue a ticket to the plaintiff to enable him to proceed from Dhandu.99) Where a passenger was killed in a railway carriage by an explosive illegally introduced into it; it was held that the railway company was not liable in damages unless guilty of negligence in permitting the fireworks to be brought into the carriage. As it was not the duty of the company to search every parcel carried by a passenger, the onus was on the plaintiff to show, that the parcels containing the fireworks suggested danger.100)
The law imposes upon carriers of passengers in ships and by inland navigation the same general obligations and responsibility with respect to the safety of passengers as it does upon carriers by land : and except, where particular Acts, as the Merchant Shipping Act, interfere, they are bound by the same rule, there being no distinction between them.
An innkeeper may be defined to be the keeper of a common inn for the lodging and entertainment of travellers and passengers, their horses and attendants, for a reasonable compensation. It must be a common inn, or diversorium, that is, an inn kept for travellers generally and not merely for a short season of the year, and for select persons who are lodgers. A person who keeps a mere private boarding or lodging house is in no just sense an innkeeper.101)
Duties: An innkeeper is bound to take in all travellers and wayfaring persons, and to entertain them, if he can accommodate them, for a reasonable compensation; and he must guard their goods with proper diligence.102) If an innkeeper improperly refuses to receive or provide for a guest he is liable to be indicted therefore. But if all the rooms of an inn be full, the innkeeper is under no duty at Common law to provide a traveller with shelter and accommodation for the night, although the coffee-room be unoccupied and a traveller demands to be allowed to pass the night there.103)
Liabilities: Innkeepers are liable only for the goods which are brought within the inn. An innkeeper is not an Insurer of the goods of his guest, but is liable for negligence, and is bound to take something more than ordinary care of his guest and his guest's goods. It is in his character as innkeeper that he is required to exercise such diligence; but if he is a mere bailee, or a mere lodging-house keeper, he would only be liable for ordinary negligence. An innkeeper cannot negative his liability for the safe custody of the goods of a guest by proving that there was no negligence on his part.104)
Defences: In exoneration of his liability an innkeeper may show that the goods were exclusively in the guest's own custody; he may prove contributory negligence in the guest, or loss from inevitable force (as that of an armed mob), act of God, or King's enemies, or by robbery or burglary, by persons from without the inn.
A person who keeps a temperance hotel is an innkeeper. The Common law obligation on an innkeeper to provide accommodation continues so long only as the guest is a traveller. In the case, therefore, of a person wishing to reside at an hotel the proprietor is not bound to allow him to remain after reasonable notice to quit has been given. The law of England had conferred exceptional privileges and exceptional liabilities upon innkeepers, but only so far as regards persons in the position of travellers. If an innkeeper at the request of his guest sends his horse to pasture and the horse is stolen, the innkeeper is not, as such liable for the loss. But if the guest does not request it, but the innkeeper does it of his own accord, he is liable for the loss.105) An innkeeper is liable for the theft of his servant from a guest at his inn.106) The plaintiff, being on his way from his place of business in Liverpool to his home outside the town, went into the dining-room of an hotel in Liverpool, kept by the defendants, to get a meal and put his overcoat in a place where coats were ordinarily kept in that room. The coat was missing when he finished his meal. Held, that the defendants were liable.107)
In the case of medical men, not only is the duty they have to perform difficult, but the consequences of the neglect may be disastrous. Therefore more than an ordinary degree of skill is necessary for a surgeon who undertakes to perform surgical operations.108) He does not undertake to perform a cure or even to use the highest possible skill, but a proper and competent degree of skill. If he fails in this, he is liable for negligence.
The plaintiff, who was engaged to marry the daughter of M, was falsely accused of being affected with a venereal disease. M employed the defendant, a physician, to examine the plaintiff, who consented to the transaction and to report the result to himself and family. The defendant mistakenly pronounced the disease to be venereal. In consequence the engagement was broken. The Court held that the defendant's duty of exercising ordinary diligence, care and skill in a professional undertaking extended to a case where only information was sought; and that the breaking of the engagement was a damage not too remote to sustain the action.109) The decision is criticized at 7 Mad.L.J. 53. See also, Dubois v. Decker. A, knocks down and tramples on B, and induces strangulated hernia. An operation is performed by C, a surgeon of experience and skill, but negligently. Death ensues. The injury was such that B would certainly have died of it if no operation had been performed, and the intervening of C independently made no difference in the peril to which the right to immunity of person was already exposed prior to the intervention. A's conduct was efficient to bring about B's death. The effect was said to have proceeded from his conduct.110)
Solicitors, like physicians, evidently undertake to bring to the duties they have to perform something more than ordinary care, for they are persons of skill and knowledge, and, like physicians, undertake matters of the very highest difficulty and importance. It is very clear that ordinary neglect, where so great care is demanded becomes very grave, and, in the language of some of the Judges, is “ gross negligence.” As the duty is most difficult it is not every error or want of success that is to be attributed to negligence.
Where a solicitor is guilty of negligence or misconduct the Court may order him to make good any loss occasioned by such negligence or misconduct. But where the loss does not flow from his act or default the Court will not, merely because he has been guilty of misconduct, mulct him in damages.
An action to recover damages owing to the alleged negligence of a solicitor while retained on behalf of the plaintiff survives against the personal representatives of the solicitor.114)
Indian law: An advocate is liable to an action for damages, at the suit of his client for a mala fide breach of duty or wrong independent of contract.115)
Like physicians and lawyers, bankers hold themselves out to be persons of care and skill and they undertake most important duties. With respect to money placed in their hands by their customers for the ordinary purposes of banking, whether they receive a profit or not, they hold themselves out as persons worthy of trust, and as persons of skill, and they must be expected to use something more than ordinary care. In other cases, they are liable for ordinary negligence only. Bankers are liable for negligence in paying forged cheques, and there can be little doubt that they are bound to exhibit skill in detecting such forgeries.
Where persons possess or use dangerous things they are bound to exercise more than ordinary care in their control of them, and, in some cases, to keep them safe at their peril. Of this class are persons keeping:
There are two classes of animals:
Indian law: A man would be liable for injury caused by his animal, whether tame or wild, if it is proved that the injury was due to the owner's negligence.
A person who keeps a savage animal does so at his peril. He is bound to keep it so far under control as to prevent it indulging its propensity and inflicting injury. If the animal escapes and hurts anyone, it is not necessary for the party injured show that the owner knew the animal to be specially dangerous. Though the owner have no particular notice that he did any such thing before, yet if it be a beast that is ferae naturae, as a lion, a bear, a wolf, yea an ape or monkey, if he get loose and do harm to any person, the owner is liable to an action for the damage.
Whosoever keeps an animal accustomed to attack and bite mankind, with knowledge that it is so accustomed, is prima facie liable at the suit of any person attacked and injured by the animal, without any averment of negligence or default in the securing or taking care of it. The gist of the action is the keeping of the animal after knowledge of its mischievous propensities.117)
In the leading case of May v. Burdett, the action was for keeping a monkey which the defendant knew to be accustomed to bite people, and which bit the plaintiff; and the defendant was held liable. Where an elephant exhibited by the defendants injured the plaintiff, it was held that the plaintiff was entitled to recover damages from the defendant as elephant was an animal ferae naturae.118)
Indian case: In this country a man is not liable for any damage done by his elephant without any proof of negligence or that he knew it to be of a vicious disposition. In view of the manner in, and extent to, which elephants are employed in this country, such a proposition would be manifestly unjust.119)
As to these animals the rule is clear beyond doubt that the knowledge of the defendant must be shown of their propensity to do the act in question. The owner is liable for their trespasses and consequent damage, but not for other injuries unless proof of scienter is given as to the propensity of the animal itself to do the act in question. It not being usual for dogs, or horses, or rams, or bulls to attack human beings, the plaintiff complaining of such injury from such animals must establish that the defendant knew they were exceptionally savage and prone to injure mankind. A single instance of the ferocity of such animals is sufficient notice.
The defendant was held liable, it being proved that the dog had been bitten by a mad dog, and that the defendant had a suspicion of his madness by tying him up.120)
It has been held that, if the owner of a dog appoints a servant to keep it, the servant's knowledge of the animal's disposition is the knowledge of the master for it is the knowledge acquired by him in relation to a matter within the scope of his employment.
But where the complaint is made to a servant who has no control over the defendant's business, nor his yard where his dog was kept, the knowledge of the servant would not necessarily be that of the master.
The plaintiff, defendant's foreman, knew that a ferocious dog was kept for the safety of premises loose in the yard, but he went incautiously into the yard and was bitten; the defendant was not liable.121)
An action was brought against the owner of a dog for killing sheep, the allegation being that the defendant knew that the dog was accustomed to kill sheep, but the proof given in support of it was that the dog had previously sprung on a man. This was held to be insufficient, unless it could also be shown that every dog which jumped at men would of necessity bite sheep.122)
In actions for injury sustained by a man through the bite of a dog, the scienter which it is necessary to show is that the dog had a ferocious disposition towards mankind, that he had bitten or attempted to bite mankind. It is not sufficient to show that it had to the defendant's knowledge, chased and bitten a goat.
Where a horse kicked a child it was held that in the absence of proof of knowledge of a special vicious disposition the owner was not liable.
Indian case: In a fight between two buffaloes belonging to different owners, one was killed. Held, that the owner of the buffalo which killed the other was not liable to make compensation in the absence of neglect or carelessness on his part in keeping the animal.123)
It has been found desirable specially to modify the Common law with respect to injuries inflicted by dogs on cattle and sheep, and to dispense with the necessity of proving scienter, and this was effected by legislation.
Of this class are:
Every person who lights a fire is clothed by the Common law with a heavy responsibility to his neighbours as regards the lighting, safekeeping, and spreading of such fire. The making of a fire involves the bringing on land of something not naturally there, and therefore the owner of the fire is bound to keep it in at his peril.
Domestic purposes: A man is not liable for damage caused by “ domestic fire,” i.e., a fire which began in his house or on his land, provided that it originated by accident and without negligence.124)
Non-domestic purposes:In this case a person is absolutely liable for damage caused by fire. Railway companies are bound to prevent sparks flying from their engines upon the lands adjoining their lines so as to cause injury, unless they are protected by statutory powers, and where they are so protected, they must still use something more than ordinary care to prevent damage from a cause so likely to be dangerous.125) If the railway company had not express statutory power to use such engines, it is liable for damage by fire proceeding from it, though negligence be negatived, because it does so at its peril.126)
A farmer in Shropshire had a hayrick in a highly dangerous condition. It smoked and steamed; unmistakeable signs of being about to take fire. To the advice and remonstrance of his neighbours who pointed out its condition, all the answer the farmer vouchsated was that he would chance it. Finally, he did take a kind of precaution, he made a chimney through the rick, which, though done with good intentions, was scarcely wise. The rick took fire, and burnt the plaintiff's cottage in the next field. The farmer was held responsible for damage.127)
Where a maid-servant, whose business was simply to light a fire, took it into her head to clear a chimney of soot by setting it on fire, and burnt the whole place down, she was held liable.128)
Where a man set fire to brush and the wind blew the sparks upon his neighbour's land, it was said that he was liable whether he might or might not have reasonably anticipated the particular manner in which the fire was actually communicated.129)
The plaintiff was the proprietor of a plantation adjoining the embankment of the defendant railway company. The grass growing in the plantation was of a very combustible nature, and so were some dry branches. In fact, the whole was graphically described by the plaintiff himself as being “in just about as safe a state as an open barrel of gun-powder would be in the Cyfartta Rolling-mill.” One day this susceptible plantation was discovered to be on fire, and eight acres of it were burnt. It was not disputed that It had taken fire from the spark from one of the defendant's engines, but they contended, and it was decided, that they were not responsible, as they were authorized to use such engines, and had adopted every precaution that science could suggest to prevent injury.130)
Fire-arms, which are loaded, are highly dangerous things, and more than ordinary care is therefore necessary in dealing with, or handling, them.
The defendant having left a loaded gun with another man, sent a young girl to fetch it with a massage to the man in whose custody it was to remove the priming, which the latter, as he thought, did, but, as it turned out, did not do effectually. The girl brought it home, and thinking that the priming having been removed the gun could not go off, pointed it at the plaintiff's son, a child, and pulled the trigger. The gun went off and injured the child. The defendant was held liable. As by this want of care, (that is, by leaving the gun without drawing the charge or seeing that the priming had been properly removed), the instrument was left in a state capable of doing mischief, the law will hold the defendant responsible. It was incumbent on him who, by charging the gun, had made it capable of doing the mischief, to render it safe and innoxious.131)
Persons are bound to use the very greatest care in the use of fire-works and other highly explosive materials, or materials otherwise dangerous or destructive. Owners and controllers of dangerous goods are bound to exercise more than ordinary care for they have not only taken upon them a matter of business requiring great care, but the law having regard for human life and safety, demands great care from them. It may even be doubted whether in some cases it would not be held that a man must keep dangerous goods at his own peril. On this principle people sending goods of an explosive or dangerous nature to be carried are bound to give notice of their nature, and, if they do not, are liable for resulting damage.
Where the defendant sent nitric acid to a carrier without warning, and the carrier's servant, handling it as he would handle a vessel of any harmless fluids, was injured by its escape, the defendant was held liable.132)
A sold gun-powder to a boy, B, eight years old. He took it home and kept it in a cup-board with the knowledge of his parents for a week. His mother gave him out some powder on two occasions, and on each occasion he fired it off with her knowledge. On the second occasion he was injured by the explosion. In an action brought against A, on behalf of B, for compensation for the injury caused by A's selling the powder to B, A was held not responsible, as the parents took the control of the gun-powder at their disposal on their premises. Their conduct had interposed between A and B and was independent and wrongful, and the injury was directly traceable to them.133)
Where the vendor of a tin containing disinfectant powder knew that it was likely to cause danger to a person opening it, unless special care was taken, and the danger was not such as presumably would be known to or appreciable by the purchaser, unless warned of it. Held, that, independently of any warranty, there was cast upon the vendor a duty to warn the purchaser of the danger.134)
Indian case: The defendant sent a box containing combustible and dangerous substances to the Railway company without notifying the contents as he was bound by law to do, and this box was placed near where the plaintiff's husband was at work, and it suddenly exploded, and the plaintiffs husband sustained such injuries in consequence that he died from the effects of them. Held, that a person who sent an article of a dangerous and explosive nature to a railway company to be carried by such company, without notifying to the servants of the company the dangerous nature of the article, was liable for the consequences of an explosion, whether it occurred in a manner which he could not hare foreseen as probable, or not. Also that such person was liable for the consequences of an explosion occurring in a manner which he could not have foreseen, if he omitted to take reasonable precautions to preclude the risk of explosion.135)
Persons dealing with poisonous drugs are bound to take more than ordinary care as the mischief which is likely to occur for want of such care is extremely dangerous to the public.
A dealer in drugs, who carelessly labels a deadly poison as a harmless medicine, and sends it so labelled in the market, is liable to all persons, whether purchasers or not, who, without fault on their part, are injured by using it as medicine in consequence of the false label, however many intermediate sales it may have passed through before it reached the hands of the person injured. The liability arises out of the duty which the law imposes upon him to avoid acts in their very nature, dangerous to the lives of others.136)
With respect to the duties of gas-companies, and persons having the management of gas, it would appear that they are bound to exercise the very greatest care, for they are using a material difficult to manage, and of a very dangerous character in many ways, for it is at once explosive and poisonous, and, not unreasonably, these companies are bound in heavy penalties by their Acts to exercise the greatest care, and even to become in some sense insurers.137)
Gas is not of itself a dangerous thing, but with atmospheric air forms a highly dangerous explosive mixture, and also makes the mixed atmosphere incapable of supporting life. Those who carry on operations to the public are bound to use all reasonable precautions.138)
A gas-fitter was employed to repair a gas-metre. He took it away and supplied a temporary pipe. The plaintiff, a servant, in the course of his duty, and without any negligence, went to light the gas, and was injured by the negligence of the gas-fitter. Held, that the gas-fitter was liable.139) A gas company was held liable for the injuries sustained by the plaintiff owing to an explosion of gas in a highway; the gas having escaped through cracks in the pipes, which were caused through the negligent laying down of pipes.140)
Persons employing machinery are bound to provide machines reasonably fit for use, and in a matter where the thing itself is difficult to make and to control, and the effects of bad manufacture or careless control might be very serious, the persons employing machinery are bound to use something more than ordinary care.
There are several Acts requiring persons using dangerous machinery to take proper precautions.
Where a positive duty is imposed by statute, it would seem that something more than ordinary care is required of the person who has to perform it, and it is certain that such person cannot shield himself by saying that he employed a competent person (contractor or other) to perform it.141)
By the expression “ duties requiring ordinary care ” is meant those duties devolving upon persons who do not hold themselves out as having, nor is there demanded of them, any peculiar or extraordinary care or skill.
The rights which a man has over his own land are, like other rights, subject to modification by the conflicting rights of others. The allegation of negligence presupposes the existence of equal rights.
Where an owner of property is using his property for his own advantage only, he is bound to take more than ordinary care;142) where for the benefit of both the parties, ordinary care; and where for the benefit of another, less than ordinary care.
For negligence in respect to rights of support see Wrongs to Easements.
Generally speaking, if a nuisance is created, and any one is injured by the nuisance in a particular manner, and not in common with the public, an action of negligence will lie.143) This is the principle of the decisions as to injuries arising from excavations or obstructions upon or near roads and paths upon which strangers have a right to be.
Amongst ordinary duties requiring no particular skill or care per se, and requiring something less than ordinary care by reason of their being performed solely for the benefit of another, are those of: