ant, i. e., the corresponding reasonably prudent, defective man. That is, the individual's physical defects are regarded as a part of the circumstances under which he acts. Thus, in Hill v. Glenwood3 a blind man was held to the standard of care of a reasonably prudent blind man, and in Keith v. Worcester, etc., Ry. Co. a person with weak eyes was held to the standard of care of a reasonably prudent weak-eyed person.

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60. Standard of care of minors.-The law also makes a separate class of children, or perhaps as many classes as there are ages of children. A child is not required to use the degree of care which an adult would use, but only that which a reasonably prudent and careful child of his own age would use."5 Suppose that the child is backward or precocious, will the law permit an examination into his individual capacity for using care and hold him to the exercise of that which he actually possesses, or will it hold him to that of the ordinarily developed child of his age? The point does not appear to be settled, but some courts view it that such a child belongs in the class in which its capacities place it rather than in that called for by his age alone.76 A child of such tender years as to be incapable of taking due care is of course not required to measure up to any standard whatever." While the law does not fix any positive

73 124 Iowa 479, 100 N. W. 522.

74 196 Mass. 478, 82 N. E. 680.

75 Parker v. Washington Elec. St. Ry. Co., 207 Pa. 438, 56 Atl. 1001, LEADING ILLUSTRATIVE CASES.

76 Illinois Iron & Metal Co. v. Weber, 196 Ill. 526, 63 N. E. 1008.

77 O'Brien v. W. C. Ry., 119 Wis. 7, 96 N. W. 424. Robinson v. Cone, 22 Vt. 213.

line, children under seven will rarely be found capable in law of due care.

DIVISION IV.

The Third Essential: Damage to the Plaintiff.

61. Necessity of damage. The action of trespass at common law was one for the invasion of a right by force directly applied. If trespass would lie, the law did not inquire into the question of damage to find whether or not the plaintiff had a cause of action." The infringement of the right was in itself ground for suit, irrespective of harm, though the amount of recovery would be influenced by the amount of harm caused by the trespass.

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The action of trespass on the case lay for injuries that were produced indirectly. In it, damage was the whole gist of the action. Without it, the act complained of was not actionable.79

If, then, X was negligent in driving a team and almost ran Y down, but did not, and Y was in no wise hurt, trespass would not lie, because there was no contact (i. e., no force directly applied), and case would not lie, because there was no damage. Thus, X may be as negligent as he pleases, as long as he pleases, without incurring legal responsibility, so long as his negligence results in neither physical impact nor harm.

If his negligence results in either impact or harm, then it should become actionable on the foregoing distinctions. When there is harm but no impact, the

78 Street, Foundations of Legal Liability, vol. III, chap. 17. 79 Street, Foundations of Legal Liability, vol. III, chap. 18.

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case falls usually under some head that is ordinarily discussed under other divisions of the law.s When, in the act of X, there is negligence with physical impact but unattended by any real harm, it appears that in modern times courts will not allow an action for negligence.81 Perhaps this is because either trespass or case could have been brought at common law for negligent contact and in this situation the attributes of case are now required to be shown. In Sullivan v. Old Colony St. Ry. Co.,82 the plaintiff was a passenger in a street car which was derailed. The plaintiff was somewhat jarred but was not really injured. He was held not to be entitled even to nominal damages.83

DIVISION V.

Proof of Negligence.

62. Who determines the existence of negligence? -Both the court and the jury have functions to perform in ascertaining whether or not a defendant was negligent. The court must instruct the jury on all questions of law and the jury ordinarily passes on all questions of disputed fact and usually makes the application of the law to the facts. But in some instances the case is so clearly one in which there is no negligence that the court determines the question

80 See subject, DAMAGES, Liability for Mental Suffering. The courts are divided on the question whether negligent conduct causing fright, which is followed by physical illness, is actionable or not.

81 Kennedy, J., in Dulieu v. White & Sons, L. R. (1901) 2 K. B. 669 (Eng.).

82 200 Mass. 303, 86 N. E. 511.

83 Trespass would not have lain in this particular suit at common law, as the negligent contact was produced by the act of the defendant's servants and not by the act of defendant himself.

as a matter of law and instructs the jury to find for the defendant. It is hard to lay down an absolute test as to when a case is to be so regarded. It was often said in a former time that the court should so proceed when there was not "a scintilla of evidence." This language is now discarded and the usual way of putting the matter is that "when from the evidence adduced a reasonable inference of negligence could not be drawn by a reasonable man" the court should instruct the jury to find for the defendant.85

The court has a right to set aside a verdict of a jury which it believes is contrary to the evidence, but a court ordinarily hesitates to assert this power unless the verdict is so clearly contrary and perverse that mistake or fraud are apparent.86

63. Burden of proof.-As it is an affirmative part of his case to prove all the elements of his action, a plaintiff has the burden of proving that the defendant owed him a duty of due care, that he violated this duty and that the plaintiff suffered harm thereby. Whether there is a duty owed to the plaintiff is ordinarily a question of law, but it sometimes involves an application of law to controverted facts. If it does, the jury must make this application. The other two matters are questions of fact ordinarily.

We have seen that the law in a few instances makes certain sorts of conduct "negligence per se;"7 that is, the plaintiff need offer no proof that the conduct

84 Offut v. World's Columbian Exposition Co., 175 Ill. 472, 51 N. E. 65. 85 Metropolitan R. R. Co. v. Jackson, L. R. 3 App. Cas. 193 (Eng.); Wakelin v. L. & S. W. Ry. Co., 12 A. C. 41 (Eng.).

86 Waters v. Bristol, 26 Conn. 398.

87 See § 49.

was negligent and the defendant is not allowed to offer proof or argue that the conduct was not negligent. This is what is sometimes spoken of as a conclusive presumption of negligence.

64. Res ipsa loquitur.-To say that the burden of proof is on the plaintiff means in a negligence case (1) that the plaintiff must first come forward with some evidence tending to show negligence on the defendant's part sufficient to go to the jury, and (2) that he must ultimately convince the jury by a preponderance of the evidence that the defendant was negligent. Both of these duties are taken off his hands in the situation spoken of last in the foregoing section. There is a further doctrine that is sometimes invoked to take off his hands the first of these two duties in still other situations. This is called the rule of res ipsa loquitur (i. e., the thing speaks for itself).

"Whenever a thing is shown to be under the management of the defendant and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence that the accident arose from want of care."88 This is known as the doctrine of res ipsa loquitur. It is a difficult thing to state in just what situations the law will say that the accident is of this kind,89 but when it is so considered, the consequence is that the plaintiff in such an instance sufficiently shows a case of negligence to have the jury pass on it. The second duty in bear

88 Earle, J., in Scott v. London Docks Co., 3 H. & C. 596, at p. 601 (Eng.). sa Wigmore on Evidence, § 2509.