BIBLIOGRAPHY.

Text Books: Pollock on Torts (8th ed.), p. 49; Salmon on Torts (2nd ed.), p. 105; Bigelow on Torts (7th ed.), § 98; Bishop, Non-Contract Law, § 40; Clerk & Lindsell on Torts (Canadian ed.), p. 139; Burdick on Torts (2nd ed.), p. 89; Street, Foundations of Legal Liability, chap. 8; 1 Sedgwick on Damages (9th ed.), chap. 7; Sutherland on Damages (3rd ed.), chap. 3; Terry, Leading Principles of Anglo-American Law, § 542; Beven on Negligence (3rd ed.), p. 89; Wharton on Negligence, § 85; 1 Shearman and Redfield on Negligence (5th ed.), chap. 2; Thompson on Negligence, vol. I, chap. 4.

Magazine Articles: 9 Harvard Law Review, 80; 15 Harvard Law Review, 541; 20 Harvard Law Review, 256; 25 Harvard Law Review, 103, 223, 303; 9 Columbia Law Review, 16, 136; 4 American Law Review, 211; 8 American Law Review, 518; 56 University of Penn. Law Review, 331; 40 Am. L. Reg. (N. S.), 80; 41 Am. L. Reg. (N. S.), 141; 18 Yale L. J., 378.

CHAPTER II.

NEGLIGENCE.

DIVISION I.

Essentials of an Action for Negligence.

32. Meaning of negligence.-Negligence is the breach of a legal duty to use due care. If this duty is not performed and one to whom it is owed is harmed thereby, the negligence becomes actionable. The following elements must all be shown, therefore, to enable a plaintiff to recover from a defendant for the latter's negligence:85 (1) a legal duty to the plaintiff to use due care; (2) a negligent failure to discharge this duty; (3) damage to the plaintiff; (4) damage caused in a legal sense by the defendant's breach of duty. The fourth requirement has already been discussed.86

DIVISION II.

The First Essential: The Legal Duty to the Plaintiff to Use Due Care.

33. Legal duty.-The law does not undertake to regulate those obligations which are merely moral in their character. It supervises only those duties which are recognized as legal; that is, it has selected

85 Faris v. Hoberg, 134 Ind. 269, 33 N. E. 1028.

86 See Chap. I, "Legal Cause."

87 Prof. Bohlen in 56 U. of Penn. Law Review 217, 316.

for regulation out of the whole possible circle of duties that might be conceived of as resting upon an individual, only certain ones. Thus, if a person by contract undertakes a duty, the law regards this as a legal duty. So also one clearly owes a legal duty not to purposely harm another, although in some cases one may offer a good excuse for a violation of this duty, as, for example, harm inflicted in defense of one's life.88 One, too, ordinarily owes a duty to all other persons, of whose presence he is aware, not to harm them by his acts of omission.89 There are, however, many situations wherein one owes no duty to take affirmative steps which will prevent a harm coming upon another. A person is not legally responsible, for example, for failure to rescue another from a peril for the existence of which he was in no wise responsible, even though he could have done so without the slightest danger to himself.

34. Same subject. That these facts are still true although the danger to which the other is subjected was occasioned by the defendant's act, if that act was not itself culpable and a breach of legal duty, is asserted in Union Pacific Ry. v. Cappier.90 The petition alleged that the defendant's engine ran over a boy, but that the train crew, though they sent at once for physicians, failed to try to staunch his wounds as promptly as they could have done, and the boy bled to death. It appeared, however, that the boy was run over through his own fault and through no fault on the

$8 Dole v. Erskine, 35 N. H. 503.

89 See Heaven v. Pender, L. R. 11 Q. B. Div. 503 (Eng.).

90 66 Kan. 639, 72 Pac. 281.

part of the train operatives. The court held that the company owed him no duty to rescue him from a danger created by his own fault, and hence was not responsible for his death.

91

It is quite another thing, however, when the defendant, though under no obligation to do so, actually undertakes to care for or rescue one in peril or in need. Thus, a nurse or physician who neglects a patient under his care is responsible for the harm occasioned by his neglect. One must use due care in the performance of any duty, legal or moral, which he undertakes. Thus, one who assists a drunken man must not only do so carefully, but must also use due care not to leave him in a position of peril." If he does some act which increases the peril he is all the more responsible.93

35. Duty owed to plaintiff.-Nor is it enough to show that the defendant owed a legal duty to some one and failed to discharge it, and that the plaintiff was injured thereby. It must further appear that the defendant owed the legal duty to the one who was harmed. Thus, in Smith v. Tripp," a city, in violation of its duty to keep thoroughfares in proper condition for travel, allowed a street to get into such a condition that water flowed from it down upon the plaintiff's property. It was held that as the city owed no duty to the plaintiff to keep water off his property, the fact that it owed a duty to travelers.

91 Regina v. Instan, 17 Cox C. C. 602 (Eng.).

92 Black v. N. Y., N. H. & H. R. R. Co., 193 Mass. 448, 79 N. E. 797, LEADING ILLUSTRATIVE CASES.

93 Depue v. Flatau, 100 Minn. 299, 111 N. W. 1.

94 13 R. I. 152.

95

was immaterial. So, in the case of violations of a statute, the plaintiff can only recover if he comes within the number of those to whom the duty created by the statute is owed. Thus, in O'Donnell v. P. & W. Railway," the defendants, though required by a statute to do so, failed to blow a whistle at a railroad crossing. The plaintiff was a tramp who was walking the track, but who was not seen until it was too late to warn him. It was held that the statute was not intended for the protection of trespassers on the track, that the defendant owed him no duty until it saw him, and that the fact that it owed a duty to those who might be crossing its track at a road was entirely immaterial.

So, a duty of one kind may be owed to one individual and a much less stringent one to another, and each can sue for the violation of only the particular kind of a duty that is owed to himself. This is well illustrated by the cases involving the duty of a land occupant with respect to the maintenance of his premises in a safe condition. The law has decided that he owes a totally different kind of duty to the invited person, the licensee, and the trespasser, respectively."

36. Duty of maker or vendor of chattels.-There are a few specific situations that require individual discussion. Suppose that the X company manufactures a stepladder which is defective. X sells it to Y, who in turn sells it to Z. Then Z uses the ladder and is injured by reason of the defect, of the exist

95 See also § 48.

96 6 R. I. 211.

97 See $39 to 47.