Chapter VIII: Interference with Advantageous Relations (14)

See various forms of stating this general doctrine in 2 Hutchinson on
Carriers, (3d. ed.) §§ 895, 896; 4 Elliott on Railroads (1st ed.) §
1585; 1 Shearman & Redfield on Negligence (6th ed.) § 51.

In Wharton on Negligence (1st ed.) §§ 636, 637, the author says that
the diligence should be “that which a good carrier of the particular
grade is accustomed to exert;” _i. e._, “the diligence and skill which
a good business man in his specialty is accustomed to use under
similar circumstances.”

For a criticism of Wharton’s statement, see 1 S. & R. Negl. (6th ed.)
§§ 43–50. And compare 2 Hutchinson on Carriers (3d ed.) § 897, note
13.

“It is reasonable care under the existing circumstances that one
person has the right to require of another; and that degree of care
becomes increased with any increase of the apparent danger involved in
its absence or with the increased power of control of one of the
parties whose conduct is in question.... A common carrier of
passengers either by rail or by water has so complete a control and
the consequences of negligence on his part may be so serious that he
is justly held to a very high degree of care for their safety; and
accordingly it has been often said, both in this and in other
jurisdictions, that he is held to the exercise of the highest degree
of care. But as was pointed out in Dodge _v._ Boston & Bangor
Steamship Co., 148 Mass. 207, 217, 218, this phrase and similar words
which have been used to convey the same idea mean simply that the
carrier is bound to use the utmost care consistent with the nature of
his undertaking and with a due regard for all other matters that ought
to be considered in conducting the business. This conductor was not
bound absolutely to exercise the highest degree of care in running his
car, but only the highest degree of care which was consistent with the
practical performance of all his duties in seeing that the car was run
safely without unreasonable delays, and so as to provide for the
safety and convenience and properly rapid transit of his passengers.
What was required of him was the highest degree of care consistent
with the practical management and operation of his car for the
carriage of passengers, ‘or in other words, the requirement [was]
reasonable care according to the nature of the contract’ with the
passengers.” Sheldon, J., in Gardner _v._ Boston R. Co., 204 Mass.
213, 216. Compare Campbell, J., in Michigan R. Co. _v._ Coleman, 28
Mich. 440, 449.

Footnote 72:

Only so much of the case is given as relates to a single point.

Footnote 73:

“Due care,” “reasonable care,” and “ordinary care” are synonymous
terms. Neal _v._ Gillett, 23 Conn. 437; Baltimore R. Co. _v._ Faith,
175 Ill. 58; Raymond _v._ Portland R. Co., 100 Me. 529; Durant _v._
Palmer, 29 N. J. Law, 544.

Footnote 74:

“But it would savor too much of refinement to hold that there is any
practical inaccuracy in saying that one driving a high-powered
automobile must exercise a greater care toward others on a state
highway than one plodding along a country road with an ox team.” Rugg,
C. J., in Com. _v._ Horsfall, 213 Mass. 232, 235.

Footnote 75:

“The rule, that due diligence is such attention and effort applied to
a given case as the ordinary prudent man would put forth under the
same circumstances, seems to meet the demands of every conceivable
case.... The ratio of diligence to circumstances being thus fixed, the
two extremes may change to an infinite extent without destroying the
ratio, and without giving rise to what we term negligence. The bailee
who undertakes the carriage of stone for the paving of a street is
held to the rule that he must use such attention and effort as the
ordinary prudent man would use under like circumstances.”

“The bailee, who undertakes to repair a delicate watch, is held to the
rule that he must use such attention and effort as the ordinary
prudent man would use under the same circumstances. The contract of
the watchmaker is the same, relatively, as that of the hod-carrier.
Each contracts to provide the reasonable ordinary skill and attention
which a man in his position would exercise under like circumstances.
The ratio, proportion, or correspondence of diligence to
circumstances, of care to surroundings, is fixed and identical. And in
determining a question of diligence or negligence in either case, it
would be only necessary to apply the same rule to varying
circumstances and persons, to demand the same ratio between varying
extremes. And it is not too much to assert that all the perplexity and
misunderstanding on the subject of diligence and negligence are due to
the habit of confounding the specific acts and circumstances, which
must always vary, with the ratio or relation between them, which
remains always the same. It is true that there _may_ be different
ratios of effort and attention to the circumstances and to the results
desired. A man may contract to furnish the highest skill, the most
perfect means and appliances, the most assiduous attention in the
accomplishment of a specific end. But, when an individual so
contracts, there is the element of _special_ or _positive_ intention
introduced, which takes the case out of the category of diligence, and
renders such a contract a special and extraordinary one. The law never
requires such a special, positive intention....” 6 Albany Law Journ.
313, 314.

Footnote 76:

Arguments omitted.

Footnote 77:

A fuller statement of the views of the learned judge may be found in
the extracts, which follow, from his work on Bailments:

“Section 11. [On the subject of the various degrees of care or
diligence which are recognized in the common law.]... There may be a
high degree of diligence, a common degree of diligence, and a slight
degree of diligence;...”

“Common or ordinary diligence is that degree of diligence which men in
general exact in respect to their own concerns.... That may be said to
be common or ordinary diligence, in the sense of the law, which men of
common prudence generally exercise about their own affairs in the age
and country in which they live.”

“Section 16. Having thus ascertained the nature of ordinary diligence,
we may now be prepared to decide upon the other two degrees. High or
great diligence is of course extraordinary diligence, or that which
very prudent persons take of their own concerns; and low or slight
diligence is that which persons of less than common prudence, or
indeed of any prudence at all, take of their own concerns. Sir William
Jones considers the latter to be the exercise of such diligence as a
man of common sense, however inattentive, takes of his own concerns.
Perhaps this is expressing the measure a little too loosely; for a man
may possess common sense, nay, uncommon sense, and yet be so grossly
inattentive to his own concerns as to deserve the appellation of
having no prudence at all. The measure is rather to be drawn from the
diligence which men, habitually careless or of little prudence (not
‘however inattentive’ they may be), generally take in their own
concerns.”

“Section 17. Having, then, arrived at the three degrees of diligence,
we are naturally led to those of negligence, which correspond thereto;
for negligence may be ordinary, or less than ordinary, or more than
ordinary. Ordinary negligence may be defined to be the want of
ordinary diligence, and slight negligence to be the want of great
diligence, and gross negligence to be the want of slight diligence.
For he who is only less diligent than very careful men cannot be said
to be more than slightly inattentive; he who omits ordinary care is a
little more negligent than men ordinarily are; and he who omits even
slight diligence fails in the lowest degree of prudence, and is deemed
grossly negligent....” Story on Bailments (8th ed.), §§ 11, 16, 17.

See also Redington _v._ Pacific Co., 107 Cal. 317, 323–324; Belt Line
R. Co. _v._ Banicki, 102 Ill. App. 642; Union R. Co. _v._ Henry, 36
Kan. 565; French _v._ Buffalo R. Co., 2 Abb. Dec. 196, 200–201, 4
Keyes 108, 113–114; Cederson _v._ Navigation Co., 38 Or. 343; Lockwood
_v._ Belle City R. Co., 92 Wis. 97, 111–113; Astin _v._ Chicago R.
Co., 143 Wis. 477.

“The theory that there are three degrees of negligence described by
the terms slight, ordinary, and gross, has been introduced into the
common law from some of the commentators on the Roman law. It may be
doubted if these terms can be usefully applied in practice. Their
meaning is not fixed, or capable of being so. One degree, thus
described, not only may be confounded with another, but it is quite
impracticable exactly to distinguish them. Their signification
necessarily varies according to circumstances, to whose influence the
courts have been forced to yield, until there are so many real
exceptions that the rules themselves can scarcely be said to have a
general operation. In Storer _v._ Gowen, 18 Maine, 177, the Supreme
Court of Maine says: ‘How much care will, in a given case, relieve a
party from the imputation of gross negligence, or what omission will
amount to the charge, is necessarily a question of fact, depending on
a great variety of circumstances which the law cannot exactly define.’
Mr. Justice Story, Bailments, § 11, says: ‘Indeed, what is common or
ordinary diligence is more a matter of fact than of law.’ If the law
furnishes no definition of the terms gross negligence, or ordinary
negligence, which can be applied in practice, but leaves it to the
jury to determine, in each case, what the duty was, and what omissions
amount to a breach of it, it would seem that imperfect and confessedly
unsuccessful attempts to define that duty had better be abandoned.

“Recently, the judges of several courts have expressed their
disapprobation of these attempts to fix the degrees of diligence by
legal definitions, and have complained of the impracticability of
applying them. Wilson _v._ Brett, 11 Meeson and Wels. 113; Wyld _v._
Pickford, 8 ibid. 443, 461, 462; Hinton _v._ Dibbin, 2 Q. B. 646, 651.
It must be confessed that the difficulty in defining gross negligence,
which is apparent in perusing such cases as Tracy et al. _v._ Wood, 3
Mason 132, and Foster _v._ The Essex Bank, 17 Mass. 479, would alone
be sufficient to justify these complaints. It may be added that some
of the ablest commentators on the Roman law, and on the civil code of
France have wholly repudiated this theory of three degrees of
diligence, as unfounded in principles of natural justice, useless in
practice, and presenting inextricable embarrassments and difficulties.
See Toullier’s Droit Civil, 6th vol., p. 239, etc.; 11th vol., p. 203,
etc.; Makeldey, Man. Du Droit Romain, 191.” Curtis, J., in Steamboat
_v._ King, 16 How. 469, 474 (injury to gratuitous passenger).

“Confusion has arisen from regarding negligence as a positive instead
of a negative word. It is really the absence of such care as it was
the duty of the defendant to use. A bailee is only bound to use the
ordinary care of a man, and so the absence of it is called gross
negligence. A person who undertakes to do some work for reward to an
article must exercise the care of a skilled workman, and the absence
of such care in him is negligence. Gross, therefore, is a word of
description, and not a definition; and it would have been only
introducing a source of confusion to use the expression gross
negligence, instead of the equivalent, a want of due care and skill in
navigating the vessel, which was again and again used by the Lord
Chief Justice in his summing up.” Willes, J., in Grill _v._ General
Collier Co., L. R. 1 C. P. 600.

As to the standard for physicians, see McNevins _v._ Lowe, 40 Ill.
209; Small _v._ Howard, 128 Mass. 131; Luka _v._ Lowrie, 171 Mich.
122; Booth _v._ Andrus, 91 Neb. 810; McCandless _v._ McWha, 22 Pa. St.
261.

Footnote 78:

Statement rewritten. Only part of case is given.

Footnote 79:

The word gross was struck out by chap. 375, Acts of 1907, § 1.

Footnote 80:

Compare Martin _v._ Boston R. Co., 205 Mass. 16; Devine _v._ New York
R. Co., 205 Mass. 416.

Footnote 81:

For other cases of statutory degrees of negligence, see Seaboard R.
Co. _v._ Cauthen, 115 Ga. 422; Louisville R. Co. _v._ Long, 94 Ky.
410; Western Tel. Co. _v._ Reeves, 34 Okl. 468; Davis _v._ Railroad
Co., 63 S. C. 370. That the wanton and reckless disregard of
consequences which makes a defendant liable at common law to a
plaintiff not in the exercise of due care is something more than
negligence gross in degree, see Birmingham R. Co. _v._ Pinckard, 124
Ala. 372; Denman _v._ Johnston, 85 Mich. 387; Banks _v._ Braman, 188
Mass. 367; Southern Mfg. Co. _v._ Bradley, 52 Tex. 587; Barlow _v._
Foster, 149 Wis. 613.

Footnote 82:

Statement of facts abridged. Only so much of the case is given as
relates to one point. Arguments omitted.

Footnote 83:

E. g., Neal _v._ Gillett, 23 Conn. 437 (child of 13; charge that age
was not to be taken into account upheld). This is universally
rejected. Lynch _v._ Nurdin, 1 Q. B. 29; Washington R. Co. _v._
Gladmon, 15 Wall. 401; Government R. Co. _v._ Hanlon, 53 Ala. 70;
Chicago R. Co. _v._ Murray, 71 Ill. 601; Indianapolis R. Co. _v._
Wilson, 134 Ind. 95; McMillan _v._ Burlington R. Co., 46 Ia. 231;
Kansas R. Co. _v._ Whipple, 39 Kan. 531; Lynch _v._ Smith, 104 Mass.
52; Huff _v._ Ames, 16 Neb. 139; Swift _v._ Staten Island R. Co., 123
N. Y. 645; Pennsylvania R. Co. _v._ Kelly, 31 Pa. St. 372; Queen _v._
Dayton Coal Co., 95 Tenn. 458; Cook _v._ Houston Navigation Co., 76
Tex. 353; Roth _v._ Union Depot Co., 13 Wash. 525.

Footnote 84:

Smith _v._ Pittsburgh R. Co., 90 Fed. 783; Warble _v._ Sulzberger, 185
Ala. 603; Denver Tramway Co. _v._ Nicholas, 35 Col. 462; Rohloff _v._
Fair Haven R. Co., 76 Conn. 689; Goldstein _v._ People’s R. Co., 5
Pennewill, 306; Elwood R. Co. _v._ Ross, 26 Ind. App. 258; Wyman _v._
Berry, 106 Me. 43; Munn _v._ Reed, 4 All. 431; Rasmussen _v._ Whipple,
211 Mass. 546 (but see Angelary _v._ Springfield R. Co., 213 Mass.
110); Lucarelli _v._ Boston R. Co., 213 Mass. 454; Strudgeon _v._
Village, 107 Mich. 496; Consolidated Traction Co. _v._ Scott, 58 N. J.
Law, 682; Swift _v._ Staten Island R. Co., 123 N. Y. 645; Laferty _v._
Third Ave. R. Co., 176 N. Y. 594; Lake Erie R. Co. _v._ Mackey, 53
Ohio St. 370; Box & Label Co. _v._ Caine, 11 Ohio Cir. Ct. R. N. S. 81
(Aff’d 78 Ohio St. 405); Dubiver _v._ City R. Co., 44 Or. 227; Rachmel
_v._ Clark, 205 Pa. St. 314; Parker _v._ Washington R. Co., 207 Pa.
St. 438 (but compare Mulligan _v._ Burrough, 243 Pa. St. 361); Texas
R. Co. _v._ Phillips, 91 Tex. 278; Christensen _v._ Oregon R. Co., 29
Utah, 192; Blankenship _v._ Chesapeake R. Co., 94 Va. 449; Deputy _v._
Kimmell, 73 W. Va. 595 _Accord_.

Children are seldom made defendants in actions for negligence. Most of
the discussions as to the standard of care required of children are to
be found in cases where the children, or their parents or
representatives, were plaintiffs seeking to recover for damage to the
children alleged to be caused by defendant’s negligence, and where the
defendant contended that the action was barred by the contributory
negligence of the child. A good discussion where defendant was an
infant may be found in Briese _v._ Maechtle, 146 Wis. 89.

Footnote 85:

Arguments and part of opinion omitted.

Footnote 86:

Northern R. Co. _v._ Heaton, 191 Fed. 24; Little Rock Traction Co.
_v._ Nelson, 66 Ark. 494 (boy ten years old); Quincy Gas Co. _v._
Bauman, 203 Ill. 295, 104 Ill. App. 600 (seven); Fishburn _v._
Burlington R. Co., 127 Ia. 483 (six); Kentucky Hotel Co. _v._ Camp, 97
Ky. 424 (seven); McMahon _v._ Northern R. Co., 39 Md. 438 (six);
Purcell _v._ Boston R. Co., 211 Mass. 79; Giaccobe _v._ Boston R. Co.,
215 Mass. 224 (seven); Godfrey _v._ Boston R. Co., 215 Mass. 432
(six); Weitzel _v._ Detroit R. Co., 186 Mich. 7 (nine); Ritscher _v._
Orange R. Co., 79 N. J. Law, 462 (six); Verdon _v._ Automobile Co., 80
N. J. Law, 199 (seven); Citizen’s R. Co. _v._ Bell, 26 Ohio Cir. Ct.
R. 691 (seven); Galveston R. Co. _v._ Moore, 59 Tex. 64 (six);
Robinson _v._ Cone, 22 Vt. 213 (three); McVoy _v._ Oakes, 91 Wis. 214
(seven); Frasers _v._ Tramways Co., 20 Sc. L. R. 192 (six); Plantza
_v._ Glasgow, 47 Sc. L. R. 688 (five) _Accord_.

A few jurisdictions have an absolute rule as to children under seven.
Government R. Co. _v._ Hanlon, 53 Ala. 70; Chicago R. Co. _v._ Tuohy,
196 Ill. 410; Reichle _v._ Transit Co., 241 Pa. St. 1 (six); Schnurr
_v._ Traction Co., 153 Pa. St. 29; Dodd _v._ Gas Co., 95 S. C. 9. Also
several jurisdictions rely on presumptions as to children between
seven and fourteen (or sometimes twelve). Birmingham R. Co. _v._
Jones, 146 Ala. 277; City _v._ McLain, 67 Miss. 4; Hebert _v._ Hudson
Electric Co., 136 App. Div. 107; Rolin _v._ Tobacco Co., 141 N. C.
300; Dowlen _v._ Texas Power Co., (Tex. Civ. App.) 174 S. W. 674; City
_v._ Shull, 97 Va. 419; Traction Co. _v._ Wilkinson, 101 Va. 394. See
also (as to children over fourteen) Central R. Co. _v._ Phillips, 91
Ga. 526; Frauenthal _v._ Laclede Gas Co., 67 Mo. App. 1; Murphy _v._
Perlstein, 73 App. Div. 256; Travers _v._ Hartmann, 5 Boyce, 302.

In Berdos _v._ Tremont Mills, 209 Mass. 489, 494, Rugg, J., says: “It
is common knowledge that children under the age of fourteen are
lacking in prudence, foresight, and restraint, and that their
curiosity and restlessness have a tendency to get them into positions
of danger. There is some point in every life where these conditions
are present in such degree as to deprive the child of capacity to
assume risk intelligently, or to be guilty of negligence consciously.
That point varies in different children for divers reasons. There is
no hard and fast rule that at any particular age a minor is presumed
to be able to comprehend risks or to be capable of negligence. Extreme
cases can be stated which obviously fall on one side or the other of
the line. In some jurisdictions it has been held that _prima facie_ a
child under fourteen years of age is presumed not to be capable of
contributory negligence. Tucker _v._ Buffalo Cotton Mills, 76 S. C.
539, and cases cited. Tutwiler Coal, Coke & Iron Co. _v._ Enslen, 129
Ala. 336. But the sounder doctrine seems to be that age is an
important though not decisive factor in determining capacity, and that
the decision of that question is not helped or hampered by any legal
presumption. This is the law of this Commonwealth.”

Compare Jacobs _v._ Koehler Co., 208 N. Y. 416.

In Kyle _v._ Boston R. Co., 215 Mass. 260, a boy five years and eleven
months old, who ran in front of an approaching car was held negligent
as a matter of law. It has generally been held that children under six
are not to be charged with negligence. See City _v._ Lewis, 155 Ky.
832; Johnson _v._ City, 164 Mich. 251; Love _v._ Detroit R. Co., 170
Mich. 1; Eskildsen _v._ City, 29 Wash. 583.

As to lower ages, see Morgan _v._ Bridge Co., 5 Dill. 96; Louisville
R. Co. _v._ Arp, 136 Ga. 489; Indianapolis R. Co. _v._ Bordenchecker,
33 Ind. App. 138; Fink _v._ City, 115 Ia. 641; Berry _v._ St. Louis R.
Co., 214 Mo. 593. Compare Gardner _v._ Grace, 1 F. & F. 359; Dorr _v._
Atlantic R. Co., 76 N. H. 160 (five and a half); Campbell _v._ Ord, 11
Sc. L. R. 54; McGregor _v._ Ross, 20 Sc. L. R. 462.

Footnote 87:

Statement abridged. Only so much of the opinion is given as relates to
a single point.

Footnote 88:

Garrison _v._ St. Louis R. Co., 92 Ark. 437; De Soto Co. _v._ Hill,
179 Ala. 186 (personal standard applied to a boy brighter than his
age); Jollimore _v._ Connecticut Co., 86 Conn. 314; Herrington _v._
City, 125 Ga. 58; Elk Mills _v._ Grant, 140 Ga. 727; Keller _v._
Gaskill, 9 Ind. App. 670; Cole _v._ Searfoss, 49 Ind. App. 334;
Louisville R. Co. _v._ Allnutt, 150 Ky. 831; Van Natta _v._ Peoples R.
Co., 133 Mo. 13; Spillane _v._ Missouri R. Co., 135 Mo. 414; Moeller
_v._ United R. Co., 242 Mo. 721; David _v._ West Jersey R. Co., 84 N.
J. Law, 685; Marius _v._ Motor Co., 146 App. Div. 608; Gigoux _v._
County, 73 Or. 212; Bridger _v._ Asheville R. Co., 27 S. C. 456; North
Texas Construction Co. _v._ Bostick, 98 Tex. 239; Kyne _v._ Southern
R. Co., 41 Utah, 368; Quinn _v._ Ross Car Co., 157 Wis. 543 _Accord_.
As to experience, see Stern _v._ Bensieck, 161 Mo. 146.