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NEGLIGENCE (Lat. negligentia, from ne...
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See also:NEGLIGENCE (See also:Lat. negligentia, from negligere, to neglect, literally " not to pick up ") , a ground of See also:civil See also:law liability, and in criminal law an See also:element in several offences, the most conspicuous of which is See also:manslaughter by negligence. In See also:order to establish civil liability on the ground of negligence, three things must be proved—a See also:duty to take care, the See also:absence of due care, and actual damage caused directly by the absence of due care. See also:Mere carelessness gives no right of See also:action unless the See also:person injured can show that there was a legal duty to take care. The duty may be to the public in See also:general, on the ground that any person who does anything which may involve See also:risk to the public is See also:bound to take due care to avoid the risk. For instance, in the words of See also:Lord See also:Blackburn, " those who go personally or bring See also:property where they know that they or it may come into collision with the persons or property of others have by law a duty See also:cast upon them to use reasonable care and skill to avoid such a collision." Where a See also:special duty to an individual is alleged, the duty must See also:rest on a See also:contract or undertaking or some similar specific ground. Thus, where a surveyor has carelessly given incorrect progress certificates, and a mortgagee who has had no contractual relation with the surveyor has advanced See also:money on the faith of the certificate, the surveyor is not liable to the mortgagee in an action of negligence; because he owed no duty to the mortgagee to be careful. When a duty to take care is established, the degree of care required is now determined by a well-ascertained See also:standard. This standard is the amount of care which would be exercised in the circumstances by an " See also:average reasonable See also:man." This See also:objective standard excludes See also:consideration of the capacity or See also:state of mind of the particular individual. It also gets rid of the old distinctions between " See also:gross," " See also:ordinary " and " slight " negligence, though no doubt the degree of care required varies with the circumstances of the See also:case. The application of such a standard is a task for which a See also:jury is a very appropriate tribunal. In fact the decision of the question whether there has been a want of due care is See also:left almost unreservedly to the jury. There is this amount of See also:control, that if the See also:judge is of See also:opinion that the See also:evidence, if believed, cannot possibly be regarded as showing want of due care, or in technical See also:language that there is " no evidence of negligence," it is his duty to withdraw the case from the jury and give See also:judgment for the See also:defendant. Unless the judge decides that there is no duty to take care, or that there is no evidence of want of care, the question of negligence or no negligence is wholly for the jury. Ordinarily a man is responsible only for his own negligence and for that of his servants and agents acting within the See also:scope of their authority. For the acts or defaults of the servants of an See also:independent contractor he is not liable. But in certain cases a stricter See also:obligation is imposed on him by law. The occupier of premises is under a duty to all persons who go there on business which concerns him to see that the premises are in a reasonably safe See also:condition so far as reasonable care and skill can make them so. Thus he cannot See also:release himself by employing an in-dependent contractor to maintain or repair the premises. The effect of this See also:doctrine is that the occupier may be liable if it can be 'shown that the independent contractor or his servant has been guilty of a want of due care. A similar obligation has been enforced in the case of a See also:wreck stranded in a navigable See also:river, and the owner was held liable for damage caused by the carelessness of the servant of an independent contractor who had under-taken to See also:light the wreck. So too any person who undertakes a See also:work likely to cause danger if due care is not taken is liable for damage caused by the carelessness of the servant of an independent contractor, so See also:long as the carelessness is not casual or See also:collateral to the servant's employment. In an action of negligence a See also:familiar See also:defence is " contributory' negligence." This is a rather misleading expression. It is not a sufficient defence to show that the See also:plaintiff was negligent, and that his negligence contributed to the harm complained of. The plaintiff's negligence will not disentitle him to recover unless it is such that without it the misfortune would not have happened, nor if the defendant might by the exercise of reasonable care on his See also:part have avoided the consequences of the plaintiff's negligence. The shortest and plainest way of expressing this See also:rule is, that the plaintiff's negligence is no defence unless it was the proximate or decisive cause of the injury. There was an See also:attempt in See also:recent times to extend this doctrine so as to make the contributory negligence of a third person a defence, in cases where the plaintiff, though not negligent himself, was travelling in a vehicle or See also:vessel managed by the negligent third person, or was otherwise under his control. In such circumstances it was said that the plaintiff was " identified " with the third person. (See also:Waite v. See also:North-Eastern Ry. Co., 1858, E. B. & E., 719). This case, in the See also:Exchequer Chamber, was an action on behalf of an See also:infant by his next friend. The infant, which was five years of See also:age, was with its grandmother, who took a See also:half-See also:ticket for the See also:child and a ticket for herself to travel by the defendants' See also:line; as they were See also:crossing the railway to be ready for the See also:train the child was injured by a passing train. The jury found that the defendants were guilty of negligence, and that the grandmother was guilty of negligence which contributed to the See also:accident, while there was no negligence of the infant plaintiff. A See also:verdict was entered for the plaintiff, but in the See also:Queen's See also:Bench the verdict was entered for the defendants, without calling on them to argue, on the ground that the infant was identified with its grandmother. But the case of the "Bernina," decided in 1888, where a passenger and an engineer on See also:board the "See also:Bushire " were killed in a collision between the " Bernina " and the " Bushire " caused by See also:fault in both See also:ships,but without fault on the part of the deceased, exploded this supposed doctrine, and made it clear that the defence of contributory negligence holds See also:good only when the defendant contends and proves that the plaintiff was injured by his own carelessness. The See also:American law of negligence is founded on the See also:English See also:common law; but the decisions in different states have occasion-ally contradicted English decisions, and also one another. See T. Beven, Negligence in Law, 3rd ed., 1908; Shearman and Redfield, The Law of Negligence (New See also:York), See also:Thompson, Commentaries on Negligence (See also:Indianapolis). (A. LL. Additional information and CommentsThere are no comments yet for this article.
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