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oneself may be likened to the keeping of a beast, and as in some cases the scienter is presumed, so it will be presumed that a man knows that if he gets drunk he will be likely to commit acts which will produce injuries to other people.

§3. NEGLIGENCE.

General legal negli

definition of

gence.
II Ex: at p.

We now come to the consideration of pure acts of negligence. Legal negligence, as we have seen, implies a neglect of a duty to do or to forbear from doing an act. "Negligence," said Alderson, B., in Blyth v. Birmingham Water Works Co., "is the omission to do something which a reasonable man, 784. guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do." Some duties are defined by statute, but the neglect or breach of these falls under the distinct category of "Breach of Statutory Duties," and have already been considered. The duties therefore, the neglect or breach of which come under the head of negligence, are those which are imposed by common law; some are precise and well established, and are generally known by the names given to the rights correlative to them. Such are the right to lateral support, the right to ancient lights: it is, as we have said, breaches of those to which no definite name is applied which are included under the head of Negligence. These duties are not to be enumerated; as the incidents of daily life are infinitely varying, so the duties which arise out of those incidents are infinitely varying also; and as often as a fresh set of circumstances is brought forward for the consideration of the Court, so often does it become the business of the Court to inquire what duties and rights these circumstances have called into existence. What is usually called the inquiry in a case whether there was any evidence of negligence is really the inquiry whether any duty existed to do what was left undone, or not to do what was done. What we have pointed out in the introductory chapter

Inquiry as to negligence is usually inexistence of duty.

evidence of

quiry as to

[cf: p. 11.]

How the standard of duty is arrived

at.

[Bigelow, p. 589.]

must not be lost sight of; the right violated in all cases will of course be one of the fundamental rights in rem, to person, reputation, or property. But in all these cases of negligence, the simple duty to forbear from violating these rights does not arise; but the more complicated question, under the circumstances, which usually involve a right belonging to the defendant himself, what amount of forbearance towards the plaintiff's rights in rem was the defendant bound to exercise.

No good end would be attained by giving a catalogue or digest of the innumerable cases that have been decided, nor can we hope to notice any but the most striking examples. We propose to follow in a great measure the plan adopted by Mr. Bigelow in his Leading Cases. It will be necessary however, in view of what we have already said, to make a slight alteration of the terms used by the learned American author. He has considered "Negligence as a question of Law or of Fact." Our consideration will be "The determination of what the Duty was under the circumstances as a question of Law or of Fact" (1).

How then are we to arrive at the standard of duty by which the acts or omissions to which it relates are to be adjudged? "In the two questions-What is the standard; and where does it exist ?-lies the whole law of negligence." In Test adopted answer to the first question it is generally said that the is the prudent man's conduct. standard in the English law is the conduct of the prudent man. But this standard, though sufficient for most cases, is sometimes misleading.

[p. 590.]

Extreme limit

of test of prudent man.

Suppose a blacksmith were to find a watch by the roadside, and discovering it to be full of dirt and gathering rust, should attempt to clean it and put it in order, and in doing so, though exercising the greatest care, should injure the watch: if in an action against him the question should be, did the defendant act as a prudent man in his situation might have done? the answer could not but be in the affirmative. A watchmaker would have done the same thing.

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(1) Mr. Bigelow appears to use the word negligence in the loose or "carelessness sense: the test of the prudent man, which he applies strictly, is, however, sufficient for all purposes.

The test of the prudent man's conduct holds good where the defendant was at the time engaged in his own business or avocation, or in some other in which he has acquired skill, or in something which all men can do alike, (as, for instance, drawing water). Within these limits the test requires that the defendant should be judged by the conduct of the prudent man engaged in the particular labour of his own calling (unless it be a thing which all can do alike), whether he be a digger of ditches or a workman in steel.

Beyond cases of this class the test fails; and if it be made to appear that the defendant has stepped out of his own business, it should seem that a prima facie case had been made against him. The judge would not presume the defendant to have skill in all kinds of business; and it would, therefore, be for the party to satisfy the jury that he had acquired the skill of a competent man of that business. And then it would be necessary to shew that he had exercised his skill as the prudent man of that business would have done. In a word, the standard of a man dehors his own business is both skill in the thing assumed and the conduct of the prudent man.

If it should be said that this after all is nothing more than the test of the prudent man's conduct, because it is not the part of a prudent man to go out of his own business, the answer is that this is using the word "conduct" in a double sense, as relating both to the degree of care exercised in doing the act which resulted in the damage, and to the change of business. And, besides, it is not always true that the prudent man would not have made the change, for a man may be equally and thoroughly skilled in several kinds of business.

In all other cases of tort than those above mentioned, the common [p. 591.] test-the conduct of the prudent man-is, as we have said, sufficiently accurate. But what constitutes the standard in each of these cases is a question of more difficult solution. It cannot be answered in the abstract. Sometimes it is matter of law, and sometimes it is matter of fact; and, even in cases where the standard is defined by the judge, no general rule can be safely laid down until a particular case is stated. We must, then, leave this subject for consideration under special cases.

The question where the standard by which the defendant's conduct is to be judged is to be found, whether in the breast of the judge or in the testimony of witnesses, is no less difficult, and must be answered in the main in the same way. In some cases we shall find the judge tacitly ruling upon the facts before him, supplying from his own breast the rule by which the defendant's liability is to be tried; in others submitting to the jury the rule to be applied. But while the subject of the proper province of the Court and jury in these cases appears, and is in fact, much confused, it is apprehended that there

Judge often declares the

prudent man's

conduct. [ante, p. 101.]

[ante, p. 168.]

are certain clear principles underlying it, which, if observed, will relieve the subject of somewhat of its difficulty.

In every case, therefore, when it becomes the duty of the Court to determine on the liability of a person, the inquiry is whether under the circumstances there was any duty cast upon him to act in any way differently; this is tested by the inquiry as to what the prudent man would have done under the circumstances. There must consequently be two questions for the Court, first, to determine on the merits of the case; secondly, to determine on the prudent man's conduct. The facts, therefore, being found, the conduct of the prudent man may be (i.) matter of common knowledge, usually expounded by the judge; (ii.) already settled by precedent: the question being then withdrawn from the jury; (iii.) primæ impressionis: a question really for the jury, but one which falls to the province of the Divisional Court or other Court of review on the question whether a nonsuit was right, or whether a verdict is in accordance with the weight of evidence. Finally, the question for the jury is, did the defendant conform to the standard?

It is in truth the necessity of determining the prudent man's conduct which distinguishes negligence from other well-known torts; in those the conduct of the prudent man is already determined.

We proceed now to examine certain well-known illustrations, which it will be seen fall under the first or third of the above divisions.

In many cases we shall often find the judge declaring that "everybody knows" what the duty is. As in Cox v. Burbidge, Erle, C.J., said the defendant was not guilty of negligence in letting the horse stray on to the highway, because "everybody knows horses do not as a rule kick children on highways." If this form is not used it is generally implied from some such words as "It was clearly the duty." As in Dixon v. Bell, where the priming of a gun not having been

entirely withdrawn, it went off and wounded a servant who was sent to fetch it. The Court considered that it was clearly the defendant's duty to have so left the gun as to be out of all reach of doing harm.

This certainty as to the duty, which may be derived from a naked statement of the facts, is sometimes expressed by the phrase res ipsa loquitur, which is equivalent to "It is apparent on the face of it."

The principle res ipsa loquitur.

759.

In Kearney v. London and Brighton Ry. Co., the plaintiff L. R. 5 Q. B. 411; 6 Q. B. was passing along a highway under a railway bridge belonging to the defendants; it was a girder bridge resting on a perpendicular brick wall with pilasters, and a brick fell from the top of one of the pilasters on which one of the girders rested, and injured the plaintiff: a train had just before gone over the bridge. No more lucid exposition of the way in which this rule is to be applied is to be found than the judgment of Cockburn, C.J., which should be attentively considered.

My own opinion is, that this is a case to which the principle res ipsa loquitur is applicable, though it is certainly as weak a case as can well be conceived in which that maxim could be taken to apply. But I think the maxim is applicable; and my reason for saying so is this. The company who have constructed this bridge were bound to construct it in a proper manner, and to use all reasonable care and diligence in keeping it in such a state of repair that no damage from its defective condition should occur to those who passed under it, the public having a right to pass under it. Now we have the fact that a brick falls out of this structure, and injures the plaintiff. The proximate cause appears to have been the looseness of the brick, and the vibration of a train passing over the bridge acting upon the defective condition of the brick. It is clear, therefore, that the structure in reference to this brick was out of repair. It is clear that it was incumbent on the defendants to use reasonable care and diligence, and I think the brick being loose affords, primâ facie, a presumption that they had not used reasonable care and diligence. It is true that it is possible that, from changes in the temperature, a brick might get into the condition in which this brickwork appears to have been from causes operating so speedily as to prevent the possibility of any diligence and care applied to such a purpose intervening in due time, so as to prevent an accident. But inasmuch as our experience of these things is, that bricks do not fall out when brickwork is kept in a

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