A Treatise on the Law of Negligence, Volume 1

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Contents

Dr Whartons definition reviewed
5
Election between intended and unintended injury
6
Duty an essential element
7
The duty must be to use care
8
No unreasonable duty required
9
In determining duty regard to be had to era II
11
Violation of statutory duty
12
Duty cannot be delegated
14
No negligence where there is no breach of duty
16
Apparent exceptions to last rule
18
What is not inevitable accident
19
Absence of intent to produce damage
20
Distinction between negligence and fraud
21
Defendants anticipation of injury not essential
22
Election between contract and tort
23
Damage an essential element
24
CHAPTER II
25
Breach of duty must be the proximate cause
26
Breach of statutory duty
27
Natural sequence defined
28
Foreseen and unforeseen consequences of negligence
31
Extraordinary consequences of negligence
32
Intervening cause breaking connection
34
Protection of travel pending repairs
35
Intervening cause must be either a superseding or responsible cause
36
Superseding cause and inevitable accident distinguished
37
Intervening responsible cause not superseding
38
Intervening cause illustrated
39
Intervening cause must be culpable
40
Intervening cause must be a free agent
41
Intervener not culpable if ignorant of facts
42
Superior force concurring with defendants negligence
43
Sidewalks and street crossings
44
Superior force concurring with defendants delay
45
CHAPTER III
47
Its impracticability in modern affairs
48
Unsatisfactory tests of ordinary care
49
Necessity of an exceptional degree of care
50
The requirement just and reasonable
51
Utmost care when required
53
Three degrees of care defined
54
Corporations liability for acts of its licensee
55
Correlative degrees of negligence
56
Gross ordinary and slight negligence defined
57
Application of the rule to passenger carriers
58
Conditions implied in license
59
Negligence a question of mingled law and fact
61
Obstructions incident to building operations
62
Questions proper for the jury
64
Obstructions from natural causesice and snow
66
When question is one of law for the court
67
Rule in New York and Connecticut
69
Liability of individuals for obstructing highways
70
CHAPTER V
71
Liability of corporation for third persons acts
73
Basis of action for injuries
74
Notice of defect when necessary
75
What will suffice to shift the burden of proof 59 When maxim res ipsa loquitur applies
76
Illustrations of its application
78
CHAPTER VI
81
Contributory negligence defined
82
CARRIERS OF PASSENGERS
83
Damages must be special
84
Contributory negligence under statutory claims
86
Action when to be brought
87
Reason of rule
88
When no defense
90
Contributory negligence
91
Fault of stranger no defense
92
Travelers knowledge of defect
94
Care required in traveling at night
97
Husband and wife 68 Knowledge of principal when imputed to agent
98
Knowledge of agent when imputed to principal
99
Contributory negligence of children
100
Negligence of parents in parents action
101
Parent must be actually in fault
102
Degree of care required from child
103
Damages recoverable 105
105
Expenses of care 655
108
Imputation of parents negligence New York rule
109
New York rule criticised
110
Imputed negligence Illinois rule I12 77 Imputed negligence of parent while in custody of child
112
Duty as to maintenance of road 109 III
113
Imputation of negligence denied Vermont rule
115
No imputed negligence iſ child careful
116
Imputed negligence parent must be acting as such
118
Imputed negligence age of child
119
Obstruction of navigation 738 Obligation to remove wrecks 612 615
120
Imputed negligence lunatics c
121
Plaintiff not prejudiced unless actually in fault I 22
122
Bridges across navigable streams
124
Plaintiff not prejudiced by want of ordinary care
125
Management and protection of drawbridges
126
Tollbridges
127
Ordinary care defined
128
State canals
129
Care required of infirm c
130
400 Construction of canals
131
Effect of mistaken judgment under sudden alarm
132
Maintaining embankments etc
133
Repair of towingpath and fencing canals
134
Duty of looking and listening
135
CHAPTER XVII
136
Effect of defendants advice or invitation
137
What dangers must be provided against
138
Plaintiff not bound to anticipate negligence
140
Laying track on highway
141
Plaintiffs fault must contribute to injury
144
Accessories of railroads
146
Plaintiffs fault must proximately contribute to injury
147
Negligence increasing damages only no bar
150
Rights of compensated landowners
151
Plaintiffs fault need not be cause of injury
152
Interference highway
153
Effect of technical trespass
154
Roadbridges over railroads
156
Technical trespass no bar
157
Crossings
158
Defendants later negligence rule in Davies v Mann
160
Commonlaw obligation to fence
164
Illustrations of rule
166
Rule not applicable where plaintiff willfully incurs injury
167
Unequal operation of commonlaw rule
169
Illinois rule of comparative negligence
170
Rule in Georgia and Tennessee
174
Effect of violating Sunday law
175
When fence must be made
176
Fences must be sufficient
177
Plaintiffs fault in representative capacity
178
Burden of proofconflict of decisions
179
Burden of proof on defendant
182
Burden ought to be on defendant
184
Presumption against negligencehow overbalanced
185
Evidence of negligence 574
186
What proof of care sufficient
187
Duty to signal cattle
188
Inference from circumstances
189
Pleading absence from fault
191
Questions of law and fact
192
Rule as to trespassing cattle
196
CHAPTER VII
200
Presumption as to negligence
201
Who may sue on breach of contract
202
When animal is rightfully on track
203
Liability for selling dangerous goods
204
Private actions upon public obligations
205
Landlords and tenants
207
Fences and cattleguards in towns
208
Infants and lunatics
209
Joint liability of trespassers and others
210
Who are not jointly liable
211
CHAPTER VIII
213
The statutory remedy
215
The statute of New York and other states
216
Special and limited liability in certain states
217
Limited liability in Pennsylvania
219
Action when brought in state where injury occurred
220
446 Liability of agents and contractors
221
Action when may be brought in another state
222
Who may bring action
223
For whose benefit action may be brought
224
No action without surviving statutory beneficiary
225
When illegitimates entitled to benefit of statute 226
226
Notice of defect when to be given
227
Cause of action for instantaneous death
228
Effect of decedents settlement or waiver of statutory benefit
229
PART II
230
Owners willful conduct
231
Principle of the rule
232
Application to relation of principle and agent
233
Agency necessary to create responsibility
234
Rule in Maryland and Georgia
235
Masters liability for servants acts under implied authority
237
Companys action against owner
238
Care required to avoid injury to persons on track
239
Master not liable for acts outside of employment
240
Illustrations of want of care
241
What acts are within employment
242
Negligence of other persons or companies
244
Implied authority of servant
246
Exemplary damages against master 629
247
Rate of speed
248
Servants abuse of authority
249
Masters liability for servants willful acts
250
Expenses incurred by death 668 668
251
Care required at highway crossings
252
Ostensible authority for willful acts
253
Master not liable for servants known abuse of power
256
Willful acts when consequence of negligence
257
When master is liable for servants willful acts
258
Disobedience of masters orders
259
Absence of flagman and watchman
260
Master not liable criminally or for penalty
261
Liability for subagents acts
262
Implied liability of ownership of vehicle
265
Ownership of other property how far implies liability
266
Who is to be deemed a master
267
Presumptions in such cases
268
Nominal master when not liable
270
Liability for servant hired out
271
Contributory negligence
273
Liability of trustees for employees acts
274
Liability for contractors negligence
275
Fractious horse
276
When a contractor becomes a servant
277
Illustrations of negligence in crossing
278
Effect of employers control over contractor
279
Effect of right of dismissal of contractor
281
Employer not liable for contractors negligence
282
Liability for contractors unlawful acts
296
Omission of duty not excused by contracting to have it done
297
CHAPTER X
299
Exemption of masters from liability to servant
300
Reasons assigned for the rule
301
Obligations of carriers not merely in contract
302
Who are common carriers of passengers
303
The real reason
305
Who not passengers
306
Liability to free passengers
307
Who are not free passengers
308
The general rule зоб 181 Effect of statutes
309
Volunteer when considered servant
310
Who is a volunteer assistant
311
Master does not insure against risks incident to the business
312
Degree of care required
313
633
314
Risks assumed under express orders
315
Obligations as to vehicles
316
Exception as to certain vehicles
319
Master liable for his own negligence
320
When ordinary care only required
321
Liability of firms and corporations
322
Degree of care required of master
323
Duration of masters duty
325
Duty to select competent fellowservants
326
Evidence of negligence in selection
327
When carriers obligation commences
330
Duty to employ sufhcient force 195 What materials master not bound to provide
333
When it ceases
334
Illustrations of masters liability
336
Duty to stop at platforms
337
Masters duty as to materials not on his property
339
Low bridge cases analyzed
340
Low bridge cases criticised
341
Liability for servants malicious acts
342
Other structures necessarily low 343 1
343
Obligation of stagecoach proprietors
344
Masters duty to warn servant
345
Presumption of negligence
347
Presumption of negligence how rebutted
350
Masters liability for delegated duties 347 1
351
Care required of passenger VOL IIPAGE
353
What is sufficient notice to master
354
Contributory negligence
355
Negligence in getting on and off a vehicle
357
Effect of servants knowledge of defects
358
Review of decisions on servants knowledge
360
Violation of statute forbidding use of platforms etc
363
210 Effect of notice given by master
364
Negligence in being in improper part of vehicle
365
True rule as to effect of notice
366
Test of servants prudence
367
Excusable forgetfulness of servants
368
Negligence in changing from car to car
369
Effect of continuance in service after notice of defect
370
Safe transportation of baggage
372
Presumption as to serrants knowledge
373
Means of knowledge how far notice
374
When carrier not responsible for baggage
375
Application of rule to minors
376
Duties of masters to minors
377
Nature of the business
378
Effect of servants knowledge of defects in master personally
379
Servants duty to warn master
380
Burden of proof
381
Application of this rule
383
Who are not fellowservants
384
Obligation to furnish telegraphic facilities
385
Responsible only for negligence
386
Unlawful messages
387
American rule servant in command not fellowservant with others
388
Duty as to receiving messages
390
Bridges distinguished from highways 115 117
391
English rule servant in command fellowservant with others
392
To whom company is responsible
393
Connecting lines
395
English rule criticised
396
English rule condemned in England
397
Viceprincipals not fellowservants
398
Who are vice principals
400
New York discrimination against corporations
401
General limitations of masters liability for viceprincipal or manager
402
Validity of contracts exempting from liability generally
403
Servants must be in same common employment
404
What constitutes common employment
405
Who are in common employment
406
Illinois rule as to common employment
407
Illustrations of common employment
409
Walking upon the track 288
410
Illustrations of fellow servants in common employment under English rule
413
Illustrations of fellowservants in common employment under all rules
415
When liable for gross negligence only
418
Obligation dependent upon compensation
419
Retainer implies professional employment only
420
Negligence a question for the jury
421
Burden of proof
422
CHAPTER XI
423
Obligation to proceed in the cause
424
Conduct of cause before trial
425
Servants liability to fellowservants
426
Liability to shipmasters
427
Joint liability of master and servant
428
PART III
429
Compromising suit in judgment
430
Extent of states immunity
431
State may consent to be sued
432
Immunity of State agents
433
Liability for disclosing privileged communications
434
Municipal corporations as State agencies
435
Legislative control over municipal corporations
436
Duty to present bill for payment or acceptance
437
Duty to give notice of dishonor of bill
438
Public and private functions of municipal corporations
439
Liability for negligence of subagents
440
Counties towns etc as State agencies
441
Exceptions to the rule
443
Personal liability of subagents
444
Counties in Pennsylvania Maryland etc
445
New England towns
447
When liable at common law
448
Public dutiespreserving the peace
450
Nonliability for mob violence
452
Imperfect execution of law and ordinances
453
Granting licenses a governmental act
455
General rule of liability for negligence
456
Preventing spread of conflagration
457
Negligence of firemen and defects in fire apparatus
458
Duty as to public health and charities
460
Duty as to schools and school buildings
462
Exercise of quasijudicial discretion
463
Illustrations of discretionary powers
466
Devising plan of public improvement
468
Error of judgment distinguished from negligence
471
Devising a necessarily dangerous plan
473
Common law liability
474
Injuries from sewers defectively planned
475
Diligence in executing process
476
Plan found defective should be altered
478
Discretion in the application of limited funds
479
Want of funds no excuse for negligence
480
Professional advice may excuse defect in plan
482
Statutory directions as to plan
483
Absolute ministerial duties
484
Liability for breach of absolute duty implied
485
Legislative intention to be ascertained
486
Presumption of notice of disposition
488
Damage consequent on authorized act
489
What deemed sufficient notice
491
Sufficient evidence of notice
492
No duty to do an unlawful thing
493
Duty as to lands and structurespiers
494
Keeping infectiously diseased cattle
495
Management of private enterpriseswater service
496
Maintenance and repair of sewers
497
Who will be deemed owner of animal
498
Maintenance and repair of highways in New England
500
Imputed knowledge of animals habits
501
Separate owners when jointly liable
502
Implied liability for nonrepair of streets
503
Negligence the only ground of action
504
Driving trespassing animals off land
505
Negligence in impounding cattle
506
Corporate liability for acts of agents
507
Subordinate officers and agents
509
Examples of negligence etc
510
Officers having independent duties
511
Departments of city government
512
Departments having auxiliary duties only
513
Omission of duty not excused by officers personal neglect
514
Independent contractors not servants
515
Corporate liability for authorized wrongful acts of agents
516
Cases in which the law of the road does not apply
517
Management of sleighs
518
Acts beyond corporate power to authorize or ratify
519
Actions over
521
No obligation to fence at common law
522
Statutory regulations
523
CHAPTER XIII
524
Immunity of judicial officers
525
Who are entitled to protection against animals by fence
526
Test of judicial character of act
527
Liability of judges of courts not of record
528
640
529
Acts done maliciously or in bad faith
530
Officers having both judicial and ministerial functions
531
Liability for spread of fire
532
Execution of process contrary to its tenor
533
Election inspectorshow far liable
535
Nonjudicial public officers classified
537
Negligent performance of ministerial duties
538
Fires kindled to clear land
539
Liability for omissions of duty
540
Subordinates neglect no excuse for omission to act
541
Statutory liability
542
Fire communicated from locomotives
543
Duty to use approved appliances on locomotives
545
Other neglect than want of approved appliances
546
Evidence of origin of fire
547
Burden of proof of origin of fire
549
CHAPTER XIV
552
Statutory liability of railroad company
553
Combustible material on right of way
555
Plaintiffs contributory fault
556
What use of adjacent land not contributory negligence
557
What is not contributory negligence
558
PART IV
559
What is contributory negligence
560
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Page 421 - ... (1) By reason of any defect in the condition of the ways, works or machinery connected with or used in the business of the employer, which arose from or had not been discovered or remedied owing to the negligence of the employer or of any person in the service of the employer and entrusted by him with the duty of seeing that the ways, works or machinery were in proper condition...
Page 70 - ... that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.
Page 205 - The proposition which these recognized cases suggest, and which is, therefore, to be deduced from them, is that whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that, if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid...
Page 31 - In determining what is proximate cause, the true rule is that the injury must be the natural and probable consequence of the negligence; such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act.
Page 424 - every corporation operating a railway shall be liable for all damages sustained by any person, including employees of such corporation, in consequence of the neglect of agents, or by any mismanagement of the engineers or other employees...
Page 423 - ... 1. By reason of any defect in the condition of the ways, works, machinery, or plant, connected with or used in the business of the employer which arose from or had not been discovered or remedied owing to the negligence of the employer or of any person in the service of the employer and intrusted by him with the duty of seeing that the ways, works, machinery, or plant, were in proper condition; 2.
Page 4 - Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done.
Page 240 - The general rule is, that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, though no express command or privity of the master be proved.
Page 165 - But there is another proposition equally well established, and it is a qualification upon the first, namely: that though the plaintiff may have been guilty of negligence, and although that negligence may, in fact, have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff's negligence will not excuse him.
Page 424 - Kansas of 1874 providing that "every railroad company organized or doing business in this state shall be liable for all damages done to any employee of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees to any person sustaining such damage...

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