contract; (2) as a tort connected with a contract, but which may be treated as a wrong independent of contract; and (3) 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.

§ 155. Elements of actionable negligence.-In order 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.

§ 156. Definition of negligence.-Actionable negligence is the inadvertent failure of a legally responsible person to use ordinary care under the circumstances in observing or performing a noncontractual 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.

§ 157. The inadvertence.-A conscious failure to use ordinary care is a wilful act, from which the law presumes an intent to injure. The wilful 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 wilful. Such a wrong is not one of negligence. The phrase, “wilful negligence," though it has been much used, is by the best authorities regarded to be a contradiction in terms. It is true, however, that many wrongs are very close upon the line dividing wilfulness and negligence, and whenever there has been wilfulness 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 wilfulness involved.

§ 158. 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.

§ 159. 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 be in proportion to the danger to be avoided and the 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 landowner 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.

§ 160. No degrees in negligence.-The test is always whether ordinary care under the circumstances has been exercised. The classification into gross, ordinary and slight negligence or care is confusing, and is of no substantial benefit to the inquiry in any special case. It is practically impossible to draw a line between the classes and the classification, though formerly made by the courts, is now almost universally abandoned. It is true that the duty owing may be greater in one case than another, and the same act may be sufficient to discharge the duty in one case which would be insufficient in another. Hence, the inquiry must always first be as to what is the duty owing. That settled, the only question is, was ordinary care exercised in the performance of that duty?

§ 161. Acts or omissions.-Negligence may consist in either an act or an omission to act. In other words, ordinary care under the circumstances may require one to do an act, or to refrain from doing an act. The question is, what is the duty, positive or negative, and whichever it is, has the duty been violated? In a wider sense every negligence is an omission, that is, a failure to discharge a duty owing.

§ 162. Legally responsible person.—If a person is wholly incapable of exercising care in its legal sense, he can not be held guilty of negligence, and upon principle ought never to be held liable in damages for his act. There is an apparent exception in case of infants and lunatics, who, according to the statement of some writers, are liable for all their torts, including negligence. In most of the decided cases the infant or insane had capacity for some degree of care, and should have been held liable for failing to exercise such prudence as was possessed. In the remaining cases, where the infant or insane was wholly incapacitated, the recovery of damages can be sustained, not on the ground of negligence in the afflicted one, but in his parents or guardians. The true rule is believed to be that a person incapable of exercising care is not liable for a failure to do so, but if there is any capacity at all, he must exercise such care as he is capable of.

Consistent with the rule are the cases of unconscious agents, for example, persons who without fault do not and can not know the danger, and act with only such care as their knowledge dictates. Persons under duress are not free to exercise any care, hence are not guilty of negligence, but this must be confined to cases where free will is wholly taken away. Persons acting under sudden alarm from any cause that robs them of possession of their senses are not legally responsible.

§ 163. Intoxication.-Voluntary intoxication does not relieve one from exercising all the care he should have exercised if sober. His negligence begins with his becoming intoxicated, and he is responsible for the consequences. Instead of being an excuse, intoxication has been held to be evidence tending to prove negligence.

§ 164. Physical infirmity.-Adults of sound mind. are, so far as negligence is concerned, presumed to be equally capable of exercising ordinary care. A man of dull mind is charged with the same kind and degree of care as is a man of brilliant intellect. Physical infirmities, however, must be taken into consideration. No one is bound for a failure to exercise a sense that he has not. But he is bound to make up for his defect as best he can by his other senses. While it can not be stated as a rule that less care is required of a woman than of a man, it very often happens, especially in cases involving physical or nervous power, that sex is of importance in determining what is ordinary care under the circum

stances.

§ 165. The person to whom the duty is owing.—In order to constitute actionable negligence there must have been a duty owing to the party complaining. The fact that there has been a violation of a duty owing to one person does not give another person a right of action therefor, even though the latter receive injury. For instance, a landowner owes the duty to his invited guests to guard them against the danger of a pit on his land, but he owes no such duty to a trespasser, and will not be liable if the latter falls into the pit.

§ 166. The duty.—Of course, if the act in question does not violate any duty, there can be no action. For example, a traveler on a highway, for his own convenience, makes a temporary bridge over a ditch; he owes no duty to any one to build the bridge in any particular way, or to build it at all. Hence he is not liable to another traveler who afterwards tries to cross and is injured.