1902 Encyclopedia > Negligence


NEGLIGENCE is in one aspect the correlative of diligence (see DILIGENCE), in another of intention. It is the absence of diligence or the absence of intention. All definitions imply this. Negligence is a term difficult to define for more than one reason. It is used not only to denote a mental state, but the consequences resulting from a mental state. Again, the term bears a somewhat different meaning as applied to civil or criminal liability. "The meaning of negligence, in the common use of language," says Mr Justice Stephen (History of the Criminal Law, vol. ii. p. 123), "is very general and indefinite. It is practically synonymous with heedlessness or carelessness, not taking notice of matters relevant to the business in hand, of which notice might and ought to have business in hand, of which notice might and ought to have been taken. This meaning is no doubt included in the legal sense of the word, but in reference to criminal law the word has also the wider meaning of omitting, for whatever reason, to discharge a legal duty, e.g., the omission by a medical man to exercise that skill which it is his duty to exercise." The vagueness of the standard by which negligence is tested is another and more serious practical difficulty. The standard is the average prudent action of the average citizen, and the defendant fails to reach this standard at his peril. This is the standard implied by such definitions as that o the New York penal Code, "the term ‘neglect,’ ‘negligence,’ ‘negligent,’ and ‘negligently’ . . . . import a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily bestows in acting in his own concern," and that of Sirey (Code Penal, § 319), "the omission or forgetfulness of a precaution dictated by prudence." The connexion between negligence and intention is illustrated by a passage in the judgement of Baron Alderson in Blyth v. The Brimingham Water Works Company (1856). "The definition of negligence," says that learned judge, "is the omitting to do something that a reasonable man would do, or the doing something that a reasonable man would not do; and an action may be brought if thereby mischief is caused to a third party not intentionally." The intention is of great importance in criminal law. Thus as a general rule it may be said that what is manslaughter where there is negligence becomes murder where there is intention. But the negligence may in some cases be of such a nature as to lead to the presumption of legal malice. It the same way in cases where the liability is civil it is important to notice that the phenomena of negligence often accord closely with those of intention. Thus in one case Lord Justice James speaks of "willful negligence which leads the court to conclude that the person is an accomplice in the fraud." The phenomena of negligence and of dishonest intention may be similar to such an extent that the court may regard them as the same, since the legal consequences resulting from them are the same.

It is the general view that there are three degrees of negligence, corresponding to three degrees of diligence. This is illustrated by the case of bailment. Where the bailment is for the benefits of the bailor, the bailee to use only slight diligence, and is liable only for gross negligence; where the bailment is for the benefit of bailor and bailee alike, each is bound to use ordinary diligence, and is liable for ordinary negligence; where the bailment is for the benefit of the bailee, he is bound to use great diligence, and is liable for slight negligence. The soundness of this position, alleged to be founded on the Roman law, is open to question. Roman law probably only recognized two degrees of culpa, the term which most nearly approaches negligence. And the term "gross negligence" has been objected to as misleading (see DILIGENCE). The truth is that it is impossible to make any useful legal distinction of degrees of negligence, when the question of negligence is mainly a question of fact. In English law it is for the jury to say, subject to certain rules or evidence, whether a particular defendant has in a particular case fallen below the standard of the average citizen. Each case must depend to a large extent upon its own merits, sided by the consideration of as series of previous cases in which certain facts have been held by the court to be or not to be prima facie evidence of negligence to go to the jury.

Contributory Negligence. –As a general rule it is a defence to an action that the injury was caused by conduct of the injured person, without which the injury would not have happened. Nut though a plaintiff may have been guilty of negligence which may have actually contributed to the injury, yet if the defendant could by the exercise of ordinary care and diligence have avoided the mischief the plaintiff’s negligence will not excuse him. Contributory negligence of a person other than the plaintiff is no excuse for the negligence of the defendant except in the case of the legal identification of the plaintiff with the negligent third party; e.g., a passenger in a train of A company is so far identified by the law with his driver that he cannot recover against B company for an injury caused by an accident to which the negligence of A company’s driver contributed. So a child cannot recover for an injury to which the negligence of the adult in charge of the child contributed.

Nature of the Remedy. – The person injured may have either a civil or a criminal remedy, or both. In most cases where the act of negligence is criminally punishable, the plaintiff may recover damages in addition. The question as to what amount or kind of negligence will bring a person within the criminal law is one by no means easy to answer. In certain cases criminal proceedings are authorized by statute, e.g., against parish authorities for refusing to call vestries (1 & 2 Will. IV. c. 60), and against persons neglecting to transmit election writs (53 Geo. III. c. 89). The question of criminal negligence arises most commonly in cases of homicide. The rule as to the functions of the jury cannot be better put than in the words of Mr Justice Stephen, ubi supra: -- " in order that negligence may be culpable, it must be of such a nature that the jury think that a person who cased death by it ought to be punished." The same high authority proceeds to point out that cases of manslaughter by negligence may be imagined in which there is no carelessness. In one matter the prisoner or defendant in criminal proceedings in under a disadvantage as compared with the defendant in an action. He cannot, as the latter can, set up contributory negligence as a defence. To this extent only is the criminal remedy wider than the civil. Where the question of contributory negligence does not arise, it may generally be said that, if an indictment will lie for negligence, a fortiori an action will lie upon the same facts. (J. W†.)

The above article was written by: James Williams, D.C.L.; Fellow of Lincoln College, Oxford; Hon. LL.D., Yale; author of The Schoolmaster and the Law, Wills and Succession, The Institutes of Justinian, illustrated by English Law, and other works on legal questions; also of A Lawyer's Leisure, Ethandune, Simple Stories of London, in verse.

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