se. 9951 and if this illegality causes harm to one to whom a legal duty is created, he is liable for the resulting damage. Most courts say this is "negligence per It is preferable to say that the defendant is liable on the statute for his illegal conduct irrespective of negligence. In some jurisdictions, it is said that the violation of a statute is only "evidence of negligence." While this is true of statutes of the first type mentioned in this section, it is not true of those of the second type, and the confusion has probably come about through failure to note that the question at bottom is one of legislative intent. What the intent was in a given statute can only be determined by its careful construction, the presumption ordinarily being that the statute must be complied with at one's peril. If such is the construction, it follows that the violator is liable irrespective of whether his act is one which a reasonable man would ordinarily have done. 50. Relation of violation to injury.-To entitle the person in whose favor a duty has been created to recover, the injury must be of the sort that the statute was designed to prevent. In Gorris v. Scott,52 a statute had been violated which required sheep pens on vessels transporting animals to be of certain sizes and to have footholds. The plaintiff's sheep had been washed overboard, as he claimed, by failure to have these requirements. The act had been passed for sanitary purposes to prevent infection in sheep, 51 Ives v. Welden, 114 Iowa 476, 87 N. W. 408. Excepting in this sense the discussion of this topic is not considered necessary in an article on negligence. 52 L. R., 9 Exch. 125 (Eng.). and therefore the plaintiff could not recover for the loss of the sheep, the injury he had sustained not being of the kind that the statute was passed to prevent. 53 It is also immaterial that the statute was violated unless the violation was the legal cause of the injury sustained, and unless a compliance with the statute would have prevented the harm. Thus, in Chrystal v. T. & B. R. R., a railroad failed to give signals required by statute. An infant on the track was run over and killed. The child was so small that the giving of the signals would not under the circumstances have been effective to get him off the track and there was therefore no recovery. DIVISION III. The Second Essential: The Breach of the Duty to Use Due Care. 51. -- Negligent breach distinguished from wilful breach. The second essential of an action for negligence is that the defendant shall have failed to discharge his duty to the plaintiff to use due care. One may have broken that duty either through mere inadvertence or purposely. The former is clearly a case of negligence. Thus, if one who was driving an automobile should become so interested in the landscape that he forgot to look as he turned a corner, he would be guilty of negligence. Negligence often, therefore, involves inadvertence or inattention to the duty to use due care. 53 Burk v. Creamery Pkg. Mfg. Co., 126 Iowa 730, 102 N. W. 793. 54 124 N. Y. 519, 26 N. E. 1103. When one purposely violates a duty resting on him to use due care, that is, when he is conscious of the fact that he is not using due care, he may do it in any one of at least three states of mind: (1) He may do so with the expectation and desire to cause harm. When both the breach of duty and the harm are intentional, it is wholly improper to speak of the act as a negligent one. This is a wilful tort. (2) He may consciously disregard his duty, knowing that the chances of his injuring some one are very great, but being entirely disregardful of whether or not such an injury will result. This reckless and wanton state of mind is usually regarded, when damage results, as equivalent to an intentional harm rather than to negligence. Thus, if one were to drive an automobile through a crowded street at an excessive speed, and some one were hurt, his act would be rather a wilful battery than a negligent trespass.55 Some courts say that this is "constructively intentional.” 56 52. Same subject.-(3) When one is conscious that he is not using due care, but expects that no harm will come of it, the authorities are not entirely harmonious as to whether this conduct is to be regarded as wilful or negligent. It is a wilful breach of the duty to use care, but the damage is unintentionally inflicted. It is sometimes said that a man must be deemed to have intended the probable consequences of his acts, but such a maxim is not well applied in 55 Banks v. Braman, 188 Mass. 367, 74 N. E. 594. 56 McClellan v. Chippewa, etc., R. Co., 110 Wis. 326, 85 N. W. 1018. And see Barlow v. Foster, next note. this situation. Some courts have spoken of this as "wilful negligence," but in any proper analysis an act is either wilful or negligent. It cannot be both. Probably it is better, if the chances of a harmful result are small, to consider the act a negligent rather than a wilful wrong. Thus, one who should set out in an automobile with a defective brake, would be guilty of negligence.57 The most important reason for drawing a distinction is because of the rule that contributory negligence is a bar to an action brought for negligence, while the same conduct is immaterial if the defendant is guilty of a wilful tort.58 Then, too, many states require such accuracy in pleading as to refuse a recovery when a wilful tort is plead and a negligent tort is proved, and vice versa.59 53. Nonfeasance and misfeasance.-A negligent breach of the duty to use due care may come about either because the party on whom the duty rests fails to act when he should act, or because when he acts he acts improperly. Inaction is termed nonfeasance, and improper action is termed misfeasance. It often happens that one owes another no duty to avoid nonfeasance, although he does owe him a duty to refrain from misfeasance. Thus, one ordinarily owes no duty to a man whom he finds ill on the street to aid him, but, if he does aid him, he must use due care in his positive acts.60 57 Georgia Pac. Ry. Co. v. Lee, 92 Ala. 262, 9 So. 230, LEADING ILLUSTRATIVE CASES; and Barlow v. Foster, 149 Wis. 613, 136 N. W. 822. 58 Steinmetz v. Kelly, 72 Ind. 442. See also § 79. 59 Proctor v. Southern Railway, 64 S. C. 491, 42 S. E. 427. 61 Again, one may owe a man a duty only to refrain from misfeasance, and owe another a duty to avoid both misfeasance and nonfeasance. Thus, the land occupier owes a trespasser only the duty to avoid positive misfeasance, but he owes the business visitor the duty to avoid nonfeasance as well. Thus, if the land occupant failed to repair his premises and both trespasser and invitee were hurt, only the invitee could recover; but if he were careless in handling timbers while making the repairs, and both were hurt thereby, both could recover. 54. Same subject-Omissions in the course of acting. We must, therefore, in every case inquire what the legal duty was to the plaintiff before we can say whether another is liable to him for his misfeasance or nonfeasance. In general, every one owes another a duty not to be actively negligent (i. e., guilty of misfeasance) against him. Generally speaking, one does not owe another a duty to avoid nonfeasance. The case of the land occupier with respect to invitees and to some extent to licensees, and the case of negligent omission by a common carrier or by an innkeeper, are exceptions to the latter rule. But one must carefully distinguish between omitting to act at all and merely omitting to do something in the course of acting. The former is nonfeasance and the latter is really misfeasance. Most cases of apparently actionable nonfeasance are instances of an act made wrongful by an accompanying or connected omission to act. Thus, if an engineer 61 See §§ 39 to 47. |