Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

is cut off, it is a special injury. And so are injuries to person or property received from collision with the obstruction.

§ 403. Remedies for nuisance.-Public or common nuisances are redressed by a criminal action, and it is often provided that judgment may be given to abate the nuisance. The remedies for private nuisance are three:

1st. Abatement by the act of the person injured. If he avails himself of this summary remedy he takes the risk of its being a nuisance, and will be liable for his mistake if it is not, and he is bound to act moderately and can not commit a breach of the peace. A private person is not justified in abating a public nuisance, unless it is also a private nuisance as to him.

2d. Damages. The person injured may recover his actual damages from the wrong-doer, and if the nuisance be malicious or wanton he may also recover exemplary damages. The remedy by action for damages is not barred by the person having abated the nuisance by his own act. Both remedies may be pursued.

3d. Injunction. It often happens that a judgment in damages will be an inadequate remedy, and in such cases a court of equity will grant an injunction against the maintenance of the nuisance. This remedy will be given, however, only where the injury is of a serious and permanent character, and will usually be withheld where the nuisance is a business lawfully conducted, and the complainant will be left to his action for damages.

§ 404. Evidence of nuisance.-Ordinarily the burden is upon the plaintiff to show the existence of the nuisance and also what the injurious effect is. Some things, however, are so uniformly and under all circumstances offensive that the courts take notice without evidence that they are nuisances. These are called nuisances per se. Formerly, many things were regarded as nuisances per se, as things prejudicial to public morals, disreputable houses, saloons, things dangerous to life, powder magazines, nitroglycerine works, and all material obstructions in highways. The tendency of the courts now is to restrict rather than extend the limits of the phrase nuisance per se. And in many states some things that were formerly nuisances per se are not now so considered. But wherever the restriction has taken place, such nuisances are now regarded as prima facie nuisances, i. e., instead of requiring the plaintiff to show that they are injurious, the courts presume them to be and require the defendant to bear the burden of showing that they are not injurious.

CHAPTER XXXI.

NEGLIGENCE.

§ 405. Actionable negligence.-The word negligence as commonly used covers all cases of omission to do that which ought to be done, but in the legal sense the meaning must be narrowed. The law does. not give a remedy for every case of omission. It is only as to such as the law redresses by way of action or defense that the term negligence should be applied.

§ 406. Contract or tort.-Negligence may exist, 1st, as a pure tort, i. e., a wrong not arising out of contract; 2d, as a tort connected with a contract, but which may be treated as a wrong independent of contract; and 3d, as a mere unintended breach of a contract involving no tort. Cases of the latter class, so far as legal redress is concerned, will amount to the same as any other breach of contract, and will therefore be considered in the chapter on contracts. In the second class the person injured usually has the right to choose whether he will treat the wrong as a mere breach of contract or as a tort, and if he chooses the former, the principles of contract control, if the latter the principles of negligence. Under the head of negligence, therefore, will be here considered only wrongs of the first class, and

such wrongs in the second class as are treated as torts.

§ 407. Elements of actionable negligence.-In or der to constitute negligence there must be :

1. A legal duty to use care.

2. A breach of that duty.

3. Absence of distinct intention to produce the precise damage.

To make it actionable there must be also: 4. Damage to the plaintiff.

5. The damage must be the proximate result. § 408. Definition.-Actionable negligence is the inadvertent failure of a legally responsible person to use ordinary care under the circumstances in observing or performing a non-contractual duty implied by law, which failure is the proximate cause of injury to a person to whom the duty is due. The elements of the definition must be considered in detail.

§ 409. The inadvertence.-A conscious failure to use ordinary care is a willful act, from which the law presumes an intent to injure. The willful doing of a wrongful act implies malice. When such a wrong occurs, the guilty person is liable for all the damages that result, even for what would be deemed too remote if the act had not been willful. Such a wrong is not one of negligence. The phrase, willful negligence," though it has been much used, is by the best authorities regarded to be a contradiction in

[ocr errors]

It is true, however, that many wrongs are very close upon the line dividing willfulness and negligence, and whenever there has been willfulness the plaintiff has the option to treat it as negligence. He may understate his case and it

would not be for the defendant to escape by showing his act to have been malicious. The uniform rule is that in an action for negligence there can be no malicious intent, or willfulness involved.

§ 410. Inevitable accident. Inadvertence does not, however, mean that the injury could not have been foreseen. It is not equivalent to inevitable accident. The latter occurs when the cause of the injury is so unusual that human foresight could not have foreseen nor guarded against it. To be guilty of negligence, the person must have been in some way in fault, otherwise the accident is as to him inevitable. For instance, unknowingly carrying an explosive and handling it on the theory that it is innocent would not be negligence in the carrier. But if inevitable accident combine with any negligence in the person charged he will be liable.

§ 411. Ordinary care under the circumstances.There can be no negligence unless there has been an absence of that degree of care which a person of ordinary prudence is presumed to use under the particular circumstances to avoid injury. Such care must avoided and the

be in proportion to the danger to be consequences involved in its neglect. What is and what is not the requisite care must be determined from all the facts in each case, and from the nature of the duty owing. The same facts may at the same time amount to ordinary care as to one person and not as to another. For instance, if a land-owner has an unguarded pit on his land, and two persons fall into it, one of whom is a trespasser and the other an invited guest, as to the former there would be no negligence, while as to the latter there would be.

« ΠροηγούμενηΣυνέχεια »