Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.1). There are different kinds of negligence.
The most formally scientific analysis of 'negligence' is that of Austin. He draws a distinction between negligence, heedlessness, and rashness, which, though closely allied, “are broadly distinguished by differences.”
The state of mind called negligence may proceed either from heedlessness, where the negligent person has not in his mind the consequences of his act, or from rashness, where he has the consequences in his mind, but thinks on insufficient grounds that they will not follow.
The standard by which to determine whether a person has been guilty of negligence is the conduct of the prudent or careful or diligent man. The question to be raised with regard to a man's conduct brought in question is, whether a prudent or careful or diligent man of his calling or business or skill would have undertaken to do the thing in question, supposing the party to have exercised due care in executing the work undertaken. When an act has been undertaken by a person whose business or profession covers the doing of acts of the kind in question, the question to be decided is, whether that skill or care or diligence has been exercised which a prudent man of the same business would have exercised in the same situation.
In regard to omissions (after overt acts) to perform acts not distinctly and certainly required by law, the question of the duty to perform them is to be decided by the general practice of prudent or careful or diligent men of the same occupation, when such a practice exists. When no such practice exists, the question is decided upon the reasonably supposable conduct of the prudent man acting under the circumstances.
The test of the prudent man's conduct holds good where the defendant was at the time engaged in his own business or avocation, or in some other in which he has acquired skill, or in something which all men can do alike (as, for instance, drawing water). Within these limits the test requires that the defendant should be judged by the conduct of the prudent man engaged in the particular labour of his own calling (unless, it be a thing which all can do alike), whether he be a digger of ditches or a worker in steel.
Beyond cases of this class the test fails; and if it be made to appear, that the defendant has stepped out of his own business, it should seem that a prima facie case had been made against him. The Judge would not presume the defendant to have skill in all kinds of business; and it would, therefore, be for the party to satisfy the Court that he had acquired the skill of a competent man of that business. And then it would be necessary to show that he had exercised his skill as the prudent man of that business would have done. In a word, the standard of a man dehors his own business is both skill in the thing assumed and the conduct of the prudent man.
The amount of caution required of a citizen in his conduct is proportioned to the amount of apparent danger. In estimating the probability of a danger to others, we are entitled to assume, in the absence of anything to show the contrary, that they have the full use of common faculities, and are capable of exercising ordinary caution.
The normal measure of the caution required from a lawful man must be fixed with regard to other men's normal powers of taking care of themselves, and abnormal infirmity can make a difference only when it is shown that in the particular case it was apparent.
On the other hand, it seems clear that greater care is required of us when it does appear that we are dealing with persons of less than ordinary faculty. Thus, if a man driving, or a cyclist, sees that a blind man, an aged man, or a cripple is crossing the road ahead, he must govern his course and speed accordingly. He will not discharge himself, in the event of a mishap, merely by showing that a young and active man with good sight would have come to no harm. In like manner, if one sees a child, or other person manifestly incapable of normal discretion, exposed to risk from one's action, it seems that proportionate care is required; and it further seems on principle immaterial that the child would not be there but for the carelessness of some parent or guardian or his servant.
A man who traverses a crowded thoroughfare with edged tools, or bars of iron, must take especial care that he does not cut or bruise others with the thing he carries. Such a person would be bound to keep a better look out than the man who merely carries an umbrella; and the person who carries an umbrella would be bound to take more care in walking with it than a person who has nothing at all in his hands.
An action for negligence proceeds upon the idea of an obligation on the part of the defendant to use care, and a breach of that obligation to the plaintiff's injury.2) In order to render a person liable for an act of negligence, which he did not himself commit, it must be shown by the person injured, either that the person sought to be made liable authorized the act of negligence complained of, or that it was committed by his servant in the course of his employment or that he owed such a duty to the person injured that he could not, by delegating its performance to a contractor, rid himself of the duty.3) To enable the plaintiff to maintain an action it is not necessary that the duty neglected should have arisen out of a contract between the plaintiff and defendants. However the duty may arise, whether by a statute or otherwise, if it exists and is neglected to the injury of the plaintiff, he has a right to sue for damages.
If things authorised to be done by a statute are carelessly or negligently done, an action is maintainable for damages.4) Powers given by statute are not to be used to the peril of the lives or the limbs of the Queen's subjects. They are to be exercised reasonably, and with due care, so as not by negligence to cause damage to others.5) And, if by a reasonable exercise of the powers, either given by the statute to the promoters, or which they have at Common law, the damage could be prevented, it is negligence within this rule not to make such reasonable exercise of their powers. Where the law casts a duty upon a person which he wrongfully fails to perform, he is answerable in damages to those whom his wrongful failure injures.6) Nothing is clear than the duty of performing the act unless there are good grounds distinctly specified by the law for the non-performance.7) Where a statute imposes a duty, it, without express words, gives an action for the failing to perform that duty, and for wrongfully performing it.
In connection with this subject the following principles should be noted:
Defendant liable: Where the plaintiff was in occupation of certain farm buildings and of corn standing in a field adjoining the field of the defendant, and the defendant stacked his hay on the latter, knowing that it was in a dangerous state and likely to catch fire, and it subsequently did ignite and set fire to the plaintiff's property, it was held that the defendant was liable.9) The plaintiff was travelling by the defendant's tramcar and when the tramcar arrived at the point where she wanted to get down, she asked the conductor to stop the car, and he rang the bell and then went up on the top of the car to collect the fares. The tramcar, however, did not stop, and accordingly she pulled the bell-cord inside the car, and, while the car was still in motion, she went out on to the footboard and stood close to the step. The car slowed down and came almost to a standstill, but did not stop, and the plaintiff was jerked off the car and injured. It was held that the defendants were liable for the negligence of their servants.10)
A railway company had connected two platforms by means of a wooden bridge, which were found to be in a dangerous condition; there was a second bridge at another point of the platform. At the place through which the deceased fell there was a descent of eight or ten steps, between which and the handrail at the side there was an opening of about seven feet by four without any protection. The bridge had been in use for ten years; the accident happened on a, moonlight night, but was the first that had ever happened although thousands of people (including the plaintiff) had used the bridge before. The company was held liable.11)
Indian cases: Leaving a door of a carriage open or unfastened amounts to negligence on the part of a railway company for the consequences of which the company is liable to passengers.12)
The defendant Municipality excavated a trench for pipe-drain in a public lane. This trench remained open for some time and owing to a heavy fall of rain water collected in it, and by percolation or saturation a considerable subsidence took place causing a very heavy damage to plaintiff's houses, close by the trench. Held, that the keeping of the drain open for a considerable time amounted to negligence and the defendant was therefore liable.13)
Breach of statutory duty: A suit for compensation for wrongful seizure of cattle will lie in a civil Court, the provisions of Act I of 1871, being no bar to such a suit. The peculiar remedy for the wrongful seizure of cattle, and the special limitation provided for it under the above Act, do not exclude the ordinary remedy which a man possesses under the law.14) Where a railway company allowed the rain water to flow for some four miles by the sides of their railway line through gutters made up of the continuous burrow-pits and then allowed it to discharge itself on the lands of the plaintiff, the railway company was held not to have exercised the powers conferred by Indian Railway Act (IX of 1890) and was held liable for negligence (Gaekwar v. Katcharabhai))
A Court will interfere by injunction to restrain acts of public functionaries in excess of their statutory powers.15)
Defendant not liable: The defendant bought a horse and the next day took him to “ try ” him in a much frequented thoroughfare. From some unexplained cause the horse became restive, and, notwithstanding the defendant's well-directed efforts to control him, ran up the pavement and killed a man. It was held that these facts disclosed no evidence of negligence on the part of the defendant.16)
A horse drawing a brougham under the care of the defendant's coachman in a public street, suddenly, and without any apparent cause, bolted, and notwithstanding the utmost efforts of the driver to control him, swerved on to the footway and injured the plaintiff. The driver did not call out and give any warning, and it was shown in evidence that the horse cast a shoe shortly after the accident; but it was held that there was no evidence to go to jury.17)
Where the defendant's horses driven by the defendant's servant bolted, and became so unmanageable that the servant could not stop them, but could, guide them, to some extent; and while trying to safely turn a corner, they knocked down and injured the plaintiff. In holding that the defendant was not guilty of negligence, the Court remarked : The driver is absolutely free from all blame in the matter. Not only does he not do anything wrong, but he endeavours to do that which is best under the circumstances. The misfortune happens through the horse being so startled by the barking of a dog that they ran away with the groom, and the defendant who is sitting beside him. Now, if the plaintiff, under such circumstances, can bring an action, I really cannot see why she could not bring an action because a splash of mud, in the ordinary course of driving, was thrown upon her dress, or got into her eye, and so injured her. It seems manifest that, under such circumstances, she could not maintain an action.18)
Where the declaration alleged that the defendant wrongfully and negligently hung a chandelier in a public house knowing that the plaintiff and others were likely to be under the chandelier, that if not properly hung it would probably fall upon them, and that the chandelier fell upon the plaintiff ; it was held that the declaration did not disclose any duty by the defendant to the plaintiff for the breach of which an action could be maintained, as it did not appear that the plaintiff was in the public house in the exercise of any right available against the defendant. There would be no end of actions if we were to hold that a person, having once done a piece of work carelessly, should, independently of honesty of purpose be fixed with liability in this way by reason of bad materials or insufficient fastening.19)
Where a waterworks company under their Act laid down a main under a turnpike road, the soil of which and of the land on either side was vested in B and negligently permitted the main to leak, whereby C, who had entered into a contract with B to make a tunnel under the road, was delayed in his work, so that his contract became unprofitable, it was held that had no cause of action against the company.20)
A was employed by B to watch certain unfinished buildings. C, a contractor, employed workmen near the spot, who were working a steam-crane and winch. A was standing, where lie need not have been, watching the workmen of C. A bucket attached by a chain to the winch passed close over his head, and the chain breaking, fell with its contents on him, and severely injured him. In the ordinary course of things nobody would have taken up his stand as A did under the bucket. C, therefore, was not bound to guard against the probability of persons being injured in that way.21)
Where a ladder from some unexplained cause fell against the window of a room in the defendant's house, in which it had been placed, and a piece of glass fell and injured the plaintiff who was passing by at the time, it was held that the defendant was entitled to judgment.22)
There were two doors on the platform of a railway station, the one marked “For gentlemen,” the other “Lamp-room,” The plaintiff desiring to go to the urinal opened by mistake the lamp-room door, fell down some steps and was injured; it was held that the company was not liable.23)
The stair-case leading to the plat-form of a railway station had a brass nosing which had become worn and slippery from constant use. The plaintiff slipped and was injured. It was shown by evidence that brass was an improper thing for the surface of the stairs, and that lead would have been better because less slippery. It was held that this was not conclusive proof of the company's negligence.24)
Indian case: The plaintiff was the owner of a piece of land, adjoining a railway line, on which was erected a bungalow, with stables and out-houses adjoining. In an action brought by the plaintiff against the railway company to recover compensation for damages occasioned by a fire caused by a, spark from one of the engines of the company, the plaint alleged want of due care on the part of the defendants in the management of the line by allowing dry grass of too great a length to remain on the railway banks, and in driving their engines along the line without due precautions being taken to prevent the expulsion of sparks. It was held that the defendant company was authorized to run locomotive engines, and therefore the company was not liable for damage without proof of negligence; and that neither in the construction of their engines, nor in the condition of the railway banks, was any negligence shown on the part of the company.25)
In actions of negligence, as in other actions of tort, the wrong-doer is answerable only for such consequences as are the natural and usual consequences of his wrongful act. It must be noticed, however, that the intervention of the agency of third parties does not under all circumstances prevent an injury being traced back to an original wrong-doer.If I am guilty of negligence in leaving anything dangerous in a place where I know it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, and if that injury should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first.26)
Not far different from the case in which the intervening agent has acted involuntarily is that in which he has acted innocently or with excusable ignorance.
The defendant, being possessed of a loaded gun, sent a young girl to fetch it, with directions to take the priming out, which was accordingly done, and damage accrued to the plaintiff's son in consequence of the girl's presenting the gun at him and drawing the trigger, when the gun went off; it was held that the defendant was liable to damages.27)
The defendant having left his horse and cart for a long time unattended in the street, where some little boys were at play, some of the boys got into the cart, and another boy fell off the shafts and got his heel crushed under the wheel; it was held that the defendant was responsible for the injury.28)
The case presents more difficulty where the intervening agent acted not involuntarily or with excusable ignorance, but negligently. Here there are two wrong-doers. It would seem that since the injury was actually occasioned by the act of the latter or immediate agent, he only, and not the original wrong-doer, should be liable. But there is another view which may be taken of the circumstances,. viz., that whilst in time the wrongful acts are successive, nevertheless in fact they are joint, since ex hypothesi neither act, of itself, and without the other act, would have caused the injury.
The owner of a horse and cart had negligently left them standing in the street, and a passer-by struck the animal causing him to back into the plaintiff's window, it was held that the owner of the horse was liable.29) The defendants' servants shunted some vehicles on to a siding which was an incline running down to a level crossing. The siding had a catch-point which would have prevented the vehicles if set loose from running down the incline, but, for the convenience of their shunting operations, the defendants' servants did not place the vehicles beyond the catch-point, but screwed down their brakes, and left them in a position in which they would not have caused any damage if not interfered with. Some boys trespassing on the siding, unscrewed the brakes and detached a vehicle, which ran down the incline and injured the plaintiff who was passing over the level-crossing. Held, that the defendants were liable for the damage sustained by the plaintiff, since they were aware that boys were in the habit of trespassing on the siding and meddling with the vehicles, and negligently omitted to take reasonable precautions to prevent the consequences of that interference.30)
The defendants contracted to supply the plaintiff with a, proper gas-pipe. Gas escaped from a defect in the pipe supplied, and the servant of a third person negligently took a lighted candle into the room from whence the escape proceeded, and the result was an explosion causing damage to the plaintiff's stock and premises; it was held that the plaintiff was entitled to recover for the damage sustained. The Appeal Court confirmed this judgment on the ground of breach of contract and not of negligence.31)
The defendants had a cellar opening to the street. Their men had taken up the flap of the cellar for the purpose of lowering casks into it, and having reared it against the wall nearly upright with its lower base, upon which there were cross-bars towards the street, had gone away. The plaintiff in one of the actions, a child five years old, got upon the cross-bars of the flap, and in jumping off them brought down the flap on himself and on another child, the plaintiff in the other action, and both were injured. It was held that while the plaintiff whose act had caused the flap to fall could not recover, the other plaintiff who had been injured could recover provided he had not been playing with the other, so as to be a joint actor with him.32)
The defendant had exposed in a public market-place a machine for crushing oil-cake. The handle was affixed, the machine was in working order, and no person was left to take care of it. The plaintiff, a boy four years of age, returning from school with his brother, a boy of seven, and some other boys, stopped at the machine. One of the boys began to turn the handle; the plaintiff, at the suggestion of his brother, placed his hands on the cogs of the wheels, and the machine being set in motion three of his fingers were crushed. It was held that the defendant was not liable, because there was no negligence on the part of the defendant, or if there was negligence it was too remote; and secondly, because the injury was caused by the act of the boy who turned the handle and of the plaintiff himself who was a trespasser.33)
Contributory negligence is negligence in not avoiding the consequences arising from the negligence of some other person, when means and opportunity are afforded to do so.34) It is the non-exercise by the plaintiff of such ordinary care, diligence, and skill as would have avoided the consequences of the defendant's negligence. The doctrine of contributory negligence is founded upon the maxim in jure non remota causa sed proxima spectatur, and contributory negligence in law is that sort of negligence on the part of a plaintiff which is the proximate and not the remote cause of the injury. It does not mean, therefore, any negligence on the part of the plaintiff which contributes to an accident of which he complains, but only such negligence as could not have been avoided or counteracted by the care of the defendant. The law, thus, takes into consideration any act or conduct of the party injured or wronged which may have immediately contributed to that result. This is upon the principle of what has been termed “ culpa-compensation,” where the “ culpa ” on one side compensates for the “ culpa ” on the other; and the reason for admitting it is, that the casual connection between the act and damage is interrupted by the “ culpa ” or negligent conduct of the injured party. Where such conduct can be proved, the party will be considered in law to be the author of his own wrong, and it will be fatal to any action on his part based on the injury. Because the rule of law is that a person who suffers a damage by his own fault is really not deemed to have suffered any legal damage : quod quis ex culpa sua damnum sentit, non intelligitur damnum sentire.
The doctrine of contributory negligence is governed by the following principles:
Contributory negligence, to afford a defence, must be that of the plaintiff himself or of his servants, whom he has selected from his knowledge or belief in their care or skill : the contributory negligence of a third person, not being the servant of the plaintiff, will not suffice.39)
Upon the issue of contributory negligence the burden of proof at the commencement of the trial is upon the defendant40), and the plaintiff is not bound in the first instance to give any evidence to negative the existence of it.
Defendant liable: An action was instituted against the pilot of a steamer in the Thames for running down the plaintiff's barge, and it was proved that there was no look-out on the barge; it was held that defendant was liable.41)
The owner of a donkey fettered his forefeet, and, in that condition, turned it into a narrow lane. It was run over by a heavy waggon belonging to the defendant. The waggon was going a little too fast, and was not properly looked after by its driver; the consequence was that it caught the poor beast, which could not get out of the way, and killed it. The owner of the donkey sued the owner of the waggon, and, in spite of his own negligence, was allowed to recover, on the ground that if the driver of the waggon had been decently careful the consequence of the plaintiff's negligence would have been averted. Although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public high-way, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road.42)
Railway cases: Some colliery proprietors had a siding from the London and North Western Railway Company's line, and over the siding a bridge with a headway of eight feet. The railway company negligently pushed a loaded truck eleven feet high against the bridge and broke it down. It appeared that the colliery proprietors as well as the railway company had been negligent in the matter, for they ought to have foreseen what was going to happen, as the loaded truck had been standing about some time; but in spite of this negligence they were held entitled to recover against the railway company for the damage done to the bridge, as the defendants, by the exercise of ordinary care, might have averted the mischief.43)
The plaintiff was leaning against the door of his compartment, when the door opened and he fell out. It was held that he could recover, because his act was not a negligent one, that is, not one which a reasonable man careful of his own safety would not do; and that he was justified in assuming that the company's servants had done their, duty by fastening the door.44)
Where there was an abrupt turning or tunnel so that the person could not see the train coming, the Court thought that it was not contributory negligence for the plaintiff to cross the line.45) The defendant's guard, without warning, forcibly closed the door of a railway carriage, thereby injuring plaintiff's hand, it was held that defendant was liable, there being no contributory negligence on the plaintiff's part.46)
Indian cases: If any inconvenience or danger is caused by the negligence of a railway company a passenger may lawfully attempt to get rid of such inconvenience or danger, provided in doing so he runs no obvious risk, disproportionate to the inconvenience or danger, and is not himself guilty of any negligence and if in such attempt he is injured the company is liable in damages.47)
Plaintiffs, who were the legal representatives of one “G” sued for compensation, under Act XIII of 1855, for loss sustained, by the death of the said “G”, which, it was alleged, was caused by injuries received in a railway accident occasioned by the negligence of defendants' servants. The lower Court having given a decree for plaintiffs, defendant appealed to the Chief Court, and it was then contended, on his behalf, that although G's injuries were caused by the negligence of defendants' servants the cause of action was the death of G, and that inasmuch as death would probably not have ensued but for the plaintiffs' imprudently removing G from the hospital to which he had been taken after the accident, plaintiffs had been guilty of contributory negligence such as disentitled them to recover compensation. Held, that the cause of action was the wrongful act on the part of defendants' servants resulting in injuries which caused the death of G, and not the death simply, although the cause of action was not complete for the relations until death occurred, death being an essential constituent of the cause of action, and, that therefore the plaintiffs' imprudent conduct in removing G from the hospital, being subsequent to the negligence which caused the injuries, did not constitute contributory negligence or disentitle them to compensation. The removal of the deceased from hospital was to be regarded merely as of one the natural and probable consequences of the infliction of the injuries it having admittedly been done bona fide for the benefit of the deceased by a relation.48)
Defendant not liable: The defendant was engaged in the enterprise of enlarging and improving his house. In carrying out his repairs he illegally put poles across a highway. One evening while things were in this improper state, the plaintiff was riding home. He went galloping through the streets “ as fast as his horse could go ”; and in doing so he rode plump up against the defendant's obstruction and had a nasty fall. He brought an action for damages, but his own careless riding was held to be as complete an obstacle to his success as the defendant's pole had been to his horse. A party is not to cast himself upon an obstruction which has been made by the fault of another and avail himself of it, if he do not himself use common and ordinary caution to be in the right … one person being in fault will not dispense with another's using ordinary care for himself.49)
Where some bricklayers employed by the defendant had wrongfully laid several barrowful of lime rubbish before the defendant's door, by the side of a highway, and, while the plaintiff was passing in his chaise, the wind raised a whirlwind of this rubbish, which frightened the plaintiff's horse and caused it to start on one side, in the direction of an approaching. waggon, and the plaintiff to prevent the horse from running against the waggon pulled him sharply round and the horse then ran over a lime heap lying before another man's door and the shaft was broken by the shook and the horse being then still more frightened ran away and upset the chaise, and threw the plaintiff out and injured him; it was held that although the defendant was to blame for putting the rubbish by the side of the road, yet if the plaintiff's running against the second heap of rubbish was owing to his pulling the horse round too sharply, the immediate cause of the injury was his own unskillfulness in the management of the horse, rather than the original wrongful act of the defendant.50)
It was held not to be contributory negligence on the part of a shipmaster to rely upon another ship taking a course which under the circumstances was the course which ought in the exercise of reasonable care to have been taken.51)
The Common law rule of contributory negligence is unknown to the maritime law administered in Courts of Admiralty jurisdiction. Under a rough working rule commonly called judicium rusticum, and apparently derived from early medieval codes or customs, with none of which, however, it coincides in its modern application the loss is equally divided in cases of collision where both ships are found to have been in fault. This principle was adopted in Haji Abdulla Haji v. ss. Deccan.
The rule as to contributory negligence is not inflexibly applied in cases where young children are concerned. Allowance is made for their inexperience and infirmity of judgment.52) In the case of very young children, the rule seems to be that an infant can recover, although its conduct contributed to the injury, if the defendant is shown to have failed in his duty to the infant.53) If a child is guilty of what in a grown up person would be mere negligence and nothing more, the child will not be disentitled to relief.
Where, however, the child is guilty, not of mere carelessness in the doing of a lawful act, but of a wholly unlawful act such as a wilful and intentional trespass, such conduct will in all cases afford a defence irrespective of the age of the child.54)
Where the defendant left his horse and a cart for a long time unattended in the street, where some little boys were at play, and some of the boys got into the cart, and another boy led the horse forward to give them a, ride and one boy fell off the shafts and got his leg crushed under the wheel, it was held that the defendant was responsible for the fall and the broken leg, as it was the natural result of his misconduct in leaving the cart unattended, and that the boy, in consequence of his tender years and natural instinct for play and want of reflection and foresight, could not be considered legally responsible for the damage he had sustained, so as to be precluded from recovering compensation from the defendant.55) This case was doubted in Lugo v. Newhold and Lay v. Midland Ry. The owner of a rotten fence adjoining a highway is liable to a boy who in attempting to climb it (which he has no right to do), is crushed and otherwise injured.56)
Where the defendant left the wooden covering of a cellar leaning against the wall, and the plaintiff, a child of seven years old, got upon it and jumped from it in play, by means of which it fell upon and injured him, it was held he could not recover.57)
The defendant left unattended a machine which any one could set in motion, and plaintiff, aged four, by his brother's direction, put his hands in the machine while his brother turned the wheel; the plaintiff was injured, but it was held that defendant was not liable.58)
Where the plaintiff aged three was injured by a passing train while sitting on a railway parapet, it was held that the defendant company was not liable.59)
A choice of evils may often be all that is left to a man, and he is not to blame if he chooses one; nor even if he chooses the greater, if he is in circumstances of difficulty and danger at the time, and has been compelled to decide hurriedly.60) Where the plaintiff is in a position such that it is his duty to do things which if done in a particular way would be dangerous, but if done in another way would not, he is bound to adopt the latter course if the choice is open to him, and not voluntarily and without necessity to expose himself to danger.61)
The defendants had made a dangerous trench in the only outlet of a mew, putting up no fence and leaving only a narrow passage, on which they heaped rubbish. The plaintiff, a cabman, in the exercise of his calling, attempted to lead a horse out over the rubbish, and the horse fell and was killed; it was held that the plaintiff was not disentitled to recover because he had at some hazard created by the defendants brought his horse out of the stable.62)
Where a passenger jumped from the roof of a coach and broke his leg to avoid what seemed an imminent upset, and the coach was however not upset; judgment was given for the plaintiff.63)
The plaintiff was travelling in a second class carriage and was sitting close to one side of the carriage looking out. He got up, walked across to the other side of the carriage and put his hands upon the door, which at once sprang open. The left hand immediately lost its hold, but he grasped the door with his right hand arm, and hung on to it whilst it was open. He was carried in this way some 300 yards or more, when seeing the pier of an arch over the line ahead of him, and fearful of coming in contact with it, he let go and endeavoured to throw himself across a bush below him; but, not having made allowance for the momentum of the train, missed the bush and fell on the line. He was afterwards found on the ballast much injured. The Court gave judgment in favour of the plaintiff.64)
A drove a waggon carelessly along the road and took it on to the side path. B being on the side path, and seeing the waggon coming along behind, and near her on the path, urged by sudden terror sprang aside, and sustained harm by striking her face against the wall of a building. Here A's negligence conduct had operated on B by depriving her of self control, by surprise or sudden terror, and caused her to sustain harm from the involuntary action thereby induced. A was held liable.65)
This doctrine was that where a person voluntarily engaged another person to carry him, he so identified himself with the carrier as to be precluded from suing a third party for negligence in cases where the carrier was guilty of contributory negligence.66) According to this principle, if A, travelling in B's carriage, driven by B's servant, is injured in a collision with C's carriage, the negligence of B's servant being the proximate cause of the accident, A was considered to be so identified with B as to be disentitled from suing C.
This doctrine has been expressly overruled in the case of “The Bernina”, in which it is laid down that where damage is sustained by the concurrent negligence of two or more persons, there is a right of action against all or any of them at plaintiff's option, and the exception of contributory negligence extends only to the acts and defaults of plaintiff himself, or of those who are really his agents. There is, now, no longer any inference of law that the driver of an omnibus, or coach, or cab, or the engineer of a train, or the captain of a vessel, and their respective passengers, are so far identified as to affect the latter with any liability for the former's contributory negligence.67)
In the leading case of Bernina, there was a collision between two ships, both in fault. The officer in charge, the chief-engineer off duty, and a passenger, all belonging to the same ship were drowned; it was held in an action against the owners of the other ship, that the representatives of the officer in charge who was directly responsible for the navigation of the ship at the time of the collision could recover nothing, but that the representatives of the chief engineer and passenger could do so.68)
Where the drivers of two rival omnibuses were competing for passengers, the one endeavouring to get before the other, and both driving at great speed, and, in trying to avoid a cart which got in their way, the wheel of the defendant's omnibus came in contact with the projecting step of the omnibus on which the plaintiff was riding, and caused it to swing against a lamp post, and the plaintiff was thrown off and injured; it was held that he was not disentitled to recover damages from the proprietor of the rival omnibus, by reason of misconduct on the part of his own driver.69)
In Child v. Hearn, the doctrine of imputability was applied to a case not depending upon the relation of carrier and passenger. The plaintiff, a servant of a railway company, was injured by an accident to a trolly caused by some pigs which had strayed from a field belonging to the defendant, through a defective fence, on to the railway line. The railway company were under the obligation of repairing the fence in question, and it was held that as no action could have been brought by the company, so neither could their servant using his master's property for his master's service be in any better position.
Persons dealing with an adult, and also with an infant or imbecile of whom the adult has charge, are entitled to expect reasonable care on the part of the adult, both for himself and for the helpless person in his charge.70)
An infant too young to take care of itself was knocked down in crossing a line, through lack of proper care on the part of the person in charge of it. In an action which was brought by the child it was held that the little boy was so identified with his grand-mother that her negligence was his, and on this ground, the plaintiff was disentitled from recovering.71)
Indian case: The Bombay High Court has held that, although the mother of a child might have been guilty of negligence which contributed to the accident, yet if the defendant could by the exercise of ordinary care and diligence have avoided the mischief which happened, her negligence would not excuse him.72)
Negligence is the breach of legal duty to take care which results in damage, undesired by the defendant to the plaintiff (Winfield).
Negligence is an independent tort. Its essentials are:
The leading case is Donoghue V. Stevenson, M, the manufac-turer had sold ginger-beer in an opaque bottle to a retail seller R. R sold it to A who gave a treat with it to a young woman P. P consumed the ginger-beer, but found in the bottle a dead snail. This seriously affected her and she became ill. She sued M, the manufacturer. In fact there was no contractual duty of M to P, but the House of Lords, held that M was liable. Lord Atkin’s judgment is a classic. He held ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour, who then in law is my neighbour ? the answere seems to be, Persons who are so closely and directly affected by my act that ought reasonably to have them in contemplation as being so affected by my acts or omissions“.
It was the duty of the manufacturer to take care that the opaque bottle did not contain noxious matter. It was held that the manufacturer was liable.
This case is a milestone and the above principle is regarded as the statement of law. The courts follow this, unless there are strong reasons to deviate from it.
The “standard of care” as applied by the courts, is the standard of a reasonable man. The care, the skill and the diligence of the person, must be that of an ordinary prudent man under the circumstances.
In Bolton V. Stone, D, a person who was on the roadside, was injured by a cricket-ball hit by the player from the field which was about 100 yards away from the road. There were one or two such rare occasions in the past. The court held that the defendants (the members of the club) were not liable. The hit was so exceptional that no prudent man would have foreseen. Further, it was too remote and no reasonable man would have anticipated.
The second essential condition is that there must be a breach of duty. This is judged with reference to a “reasonable man”. According to Alderson J, “Negligence is (i) the omission to do something which a reasonable man would do, (guided by the circumstances on hand) or (ii) doing something which a prudent man would not do”.
This is the objective standard of a reasonable man. It is the application of “foresee-ability test” i.e. whether a reasonable man would have foreseen.
Roe V. Minister of Health : In 1947. Dr. G. gave to R a spinal anesthetic to conduct an operation. The anesthetic which was in a ampoule, had been stored in phenol as usual. But due to an “invisible crack” in the ampoule, phenol had entered and in consequence, the patient R became paralysed. Dr. G had taken all care as a prudent surgeon would have taken and he was not aware of the crack in the ampoule. Held, Dr. G was not liable.
The medical literature on the subject was consulted as the set standard and Dr. G was held not negligent.
There must be the injury to the plaintiff as a direct consequence of the negligence of the defendant. It must not be too remote. The leading cases are (i) Donoughue V. Stevenson (ii) Bolton V. Stone (iii) The wagon Mound case etc. Ch. 16-2 Contributory Negligence : Meaning.
This is a defence open to the defendant, in an action for negligence. This is based on the principle that no doubt, the defendant is, in fact negligent but the plaintiff also has contributed his negligence, and hence the plaintiff should not be allowed to take advantage of his own tort of negligence. The maxim is ”in pari delicto potior est conditio defendatis“ (If both parties are equally to blame, the condition of defendant is to be preferred). Both are authors responsible for the injury. Of course, the burden of proof lies on the defendant to establish contributory negligence of the plaintiff.
The question in each case is : who caused the accident ? (Winfield)
Da vies V. Mann : P had tied the forefeet of his donkey and had let loose on the highway. D who was going at a fast pace in his wagon (horse driven), ran over and killed the donkey. P sued D. It was held that D had the last opportunity to avoid the accident. Hence, D was liable.
Butterfieid V. Forrestor : D wrongfully obstructed the high-way by putting a pole across the road. P who was riding violently saw the pole from a distance of about 100 ft. away, but came against the pole and was thrown over by the pole and was injured. It was held that D was not liable. The reason : If P had exercised due care, he could have avoided the accident, this decision has been modified later in Davies V. Mann.
This is the rule now in operation.
In British India Electric Co. V. Loach : The rule was applied to constructive last opportunity. In this case, P, a wagon driver was driving negligently on the level crossing. D’s driver who was driving a tram came at a fast speed, saw the wagon on the tramline, applied the brakes. But, as the brakes failed, he dashed against P and P was killed. P’s representative sued D.
It was found that the brakes were defective and, hence D had the last opportunity. If the brakes were in order, he could have averted the accident. He has failed to do so and hence, D was held liable.
As this rule was also not free from doubt, the Parliament enacted in England the Law Reforms Act 1945. It provides that when both P and D are at fault the claim of P will not be defeated, but would be reduced to such extent as the court thinks just and equitable.
This is also called as the dilemma principle. Such a situation arises, when the plaintiff, P is put in a position of imminent personal danger by the wrong doing of the defendant. In order to avoid the danger, P suffers injury. In such cases, D is liable.
Jones v. Boyce : D, a Coach-driver was driving with P, so negligently and with so much speed that P was alarmed. Going down the hill, the coach’s coupling gave way ; It struck a post and was about to be turned down. P, to save himself jumped out and was injured. He sued D. Held D liable.
If P had not jumped out, he would not have been injured, as the coach came to rest later without any trouble. Even then D was held liable as he had created a dilemma to P.
This is part of the rule of evidence. In cases of negligence, the burden of proving negligence is on the plaintiff, but Res ipsa loquitur is an exception. This is a case where the event “tells its own story” clearly and speaks to the defendant to disprove. Eg. the presence of a pair of scissors in the stomach of a patient P, 2 days after the operation is over, or the presence of a stone in a loaf of bread, tells its own story. The court presumes the negligence of the Defendant.
Byrne V. Boadle : A barrel of flour rolled out of an open door-way of the upper floor of the godown of D, and fell on P who was going on the street. The burden was on D to prove that he was not negligent. Held, D liable.
In State of Punjab V. M/s Modern Cultivators, a canal was under the care of the State. Due to its negligence there was a breach and water flooded the fields of P. P suffered losses and sued the State. Held, the State was liable. Res ipsa loquitur was applied.
There is a presumption of negligence according to the Latin maxim ‘res ipsa loquitur’ which means the thing speaks for itself. In such a case it is sufficient for the plaintiff to prove accident and nothing more. The defendant can, however, avoid his liability by disapproving negligence on his part. Certain things regarding this maxim has to be kept in mind, these include
If a brick falls from a building and injures a passerby on the highway, or the goods while in the possession of a bailee are lost, or a stone is found in a bun, or a bus going on a road overturns, or death of a person is caused by live broken electric wire in a street, a presumption of negligence is raised.
In Agyakaur v. Pepsu R.T.C., a rickshaw going on the correct side was hit by a bus coming on the wrong side of the road. Held that the driver of bus was negligent.
The plaintiff must not merely establish the facts of the defendants' negligence and of his own damage, but he must show that the one was the effect of the other. He must prove, where there is no contract, facts inconsistent with due diligence on the defendant's part. But where there is a contract or a personal undertaking, he must prove such contract or personal undertaking and injury to himself.
Under certain circumstances the mere happening of an accident will afford prima facie evidence that it was the result of want of due care : res ipsa loquitur (the things speaks for itself). This is so, for instance, where the thing that caused the mischief was exclusively under the defendant's or his servants' control, that it is hardly credible that any harm could have come from it if proper care had been taken.75) The defendant may rebut this presumption if he can.
Defendant liable: A barrel of flour fell out of a window of the defendant's shop upon the plaintiff passing in the street below. And as a barrel of flour would not ordinarily fall out of a window when proper care is taken in managing it, there was presumptive evidence of negligence on the part of the defendant and that the onus of proof was cast on him to show that the accident was not caused by his negligence.76)
The plaintiff was injured by the fall of a large packing case belonging to the defendant, while making inquiries for the defendant at the door of a house in which the latter had offices. He had received a push from the defendant's servant who was watching a packing case, and immediately the case which stood against the wall of a house, fell and struck him on the foot. There was no evidence why the packing case fell, or who placed it against the wall. It was held that the facts showed a prima facie case of negligence as packing cases do not usually fall of themselves unless there has been some negligence in setting them up.77)
Where a bag of sugar fell from a crane fixed over a doorway under which the plaintiff was lawfully passing, in the absence of any explanation of the cause of the bag falling, the defendants were held liable.78)
The plaintiff was injured by the fall of a brick while passing under a railway bridge extending over the highway. The bridge rested on perpendicular brick walls having pilasters; and from the top of one of these pilasters the brick fell shortly after the passing of a train; it was held that these facts raised a presumption of negligence against the defendant.79)
In an action against the proprietor of a stage-coach, the fact that the coach was upset and the plaintiff injured was sufficient to raise a presumption of negligence or want of skill in the driver.80)
Pulling a wrong rein is evidence of negligence; so too is the spurring a horse when it is within kicking distance of a passer by; or blowing of steam at a level crossing.
In front of a window of defendant's shop, and immediately abutting on a public highway, was a low wall eighteen inches high, defendant's property, on the top of which was a row of sharp spikes. The plaintiff a child of five, was found standing by the wall, bleeding from a wound such as might have been caused by her falling upon the spikes. Held, that there was evidence that the injury was caused by the wrongful act of the defendants in maintaining the nuisance while the plaintiff was using the highway in a proper manner.81)
Defendant not liable: Mere fact of a man driving on the wrong side of the road is no evidence of negligence, in an action brought against him for running over a person who was crossing the road on foot.82)
Where the plaintiff was injured by the fall of a timber and a roll of zinc from the roof of a portico undergoing repairs, under which he was standing; it was held that no presumption of negligence could be raised from this fact. It was incumbent upon the plaintiff to show that the defendants knew or had the means of knowing or were bound to take steps to know, the condition of the roof; and it did not follow that because they knew that the roof needed repairing they also knew that it would not bear the weight of a man.83)
A goods train and a passenger train met and were passing each other on a double line of railway. Some timber on a truck in the goods train projected and struck the passenger train, injuring a passenger. The timber had been loaded on the truck without stanchions, and was secured by a chain only, which broke and there was evidence that the breakage was caused by a latent flaw in the chain. There was evidence that it would have been safer to load the timber with stanchions, but that the use of them for that purpose was comparatively recent, and there was no evidence of any accident having happened from not using the stanchions. An action being brought by the passenger against the railway company, it was held that it was for him to show that the accident was caused by the negligence of the company and that the company was not bound to show how the accident happened.84)
The plaintiff's wife, having safely crossed in front of an omnibus, was startled by some other carriage, and ran back; the driver had seen her pass, and then turned round to speak to the conductor, so that he did not see her return in time to pull up and avoid mischief. The omnibus was on its right side and going at a moderate pace. Here there was no evidence of negligence on the part of the defendant, the owner of the omnibus. Held, that the defendant was not negligent.85)
Where the dead body of a man was found on the defendants' railway near to a level crossing, the man having been killed by a train which bore the usual head-lights, but did not whistle, it was held in an action by the widow, that there was no evidence of negligence on the defendants' part. In the course of the judgment it was said: One may surmise, and it is but surmise and not evidence, that the unfortunate man was knocked down by a passing train while on the level crossing; but assuming in the plaintiff's favour that fact to be established, is there anything to show that the train ran over the man rather than that man ran against the train ?86) Where a passenger is seated in a railway carriage, the fact that his finger is crushed owing to the shutting; of the carriage door by a railway servant on the platform is not evidence of negligence in an action against the company.87)
In some cases, the amount of damages will depend upon the character of the negligence, as for instance, if it be of a reckless character. And upon the other hand it would seem that the conduct of the plaintiff (not amounting to contributory negligence so as to be an answer to the action), may be given in evidence in mitigation of damages. The recovery of insurance money cannot be set up in mitigation of damages for negligence.88)
If a plaintiff obtains a judgment against a master or servant, he cannot afterwards sue the other of them. Where the plaintiff sued the owner of an omnibus for personal injuries, but had accepted a sum of money from the driver awarded by a Magistrate as compensation, it was held a good answer to the action, even though the sum was quite inadequate, and although the money was paid by the driver and not by the owner of the omnibus.89)
With respect to damages for personal injuries, the measure is the loss of time, expense incurred, pain and suffering, and permanent injury causing pecuniary loss, as to which, it is said, that the amount awarded must not be an equivalent for the loss but some reasonable sum.90) It is said that where it is impossible to estimate accurately the amount of damage done, the defendant must suffer.91) If some damage must have happened to the plaintiff, irrespective of the defendant's act, that must be deducted from the whole amount of damage done, for the defendant is only liable for the consequences of his own act.92)
Where the plaintiff is disabled for life the measure of damages is not to be taken from the amount of an annuity which would replace the annual salary of the deceased, for it does not follow that he would have retained his situation for the whole of his life; but a reasonable sum must be given.95)
The plaintiff was a surgeon of middle age, and previously of robust health, making a professional income of between £6,000 and £7,000 per annum. The injury complained of had rendered his condition helpless and hopeless. It was likely that he would never recover, and certain that he could never resume his practice. Field, J., in charging the jury divided the claim for damages into the heads of compensation for personal suffering and injury, and for loss of future income. As to the first he said : ” Perfect compensation is hardly possible, and would be unjust. You cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recollect that this is the only occasion on which compensation can be given. Dr. Phillips can never sue again for it. You have, therefore, now to give him compensation once for all. He has done no wrong; he has suffered a wrong at the hands of the defendants, and you must take care to give him full and fair compensation for that which he has suffered.“ To the sum so arrived at, all costs of medical attendance, journeys, etc., arising from the accident, would necessarily be added. As regards the second head he said : ” you are not to give the value of an annuity of the same amount as the plaintiff's average income for the rest of the plaintiff's life. If you gave that you would be disregarding some of the contingencies. An accident might have taken the plaintiff off within a year. He might have lived, on the other hand, for the next twenty years, and yet many things might have happened to prevent his continuing his practice.“ It was suggested that the fact that the plaintiff had a secured income of £3,500 per annum was a legitimate consideration upon which the jury might act in reducing the damages. The Judge told the jury he could not remove that fact from their view, though he stated his opinion, that it ought not to affect the amount which he was entitled to receive as compensation, either for personal injury or for loss of income. The jury gave a verdict of £7,000, but a new trial was ordered on the ground that the damages were insufficient.96)
In such cases the measure of damages is the cost of re-instating the property, if the plaintiff, as a reasonable man, would have reinstated the property; but if not, then depreciation in the value is the true measure. If a chattel be lost or destroyed through the negligence of the defendant the measure of damages is the value of the chattel, but if the chattel be only injured then the depreciation in its value is the measure, with an extra allowance for the loss of the use of the chattel while it is being repaired or replaced.
In an action for injury to a horse the proper measure of damages is the keep of the horse, the farrier's bill, and the loss in value of the horse97), with some reasonable sum for any pecuniary loss of the use of the horse while under treatment98), or for hiring another horse to do his duty.99)