Note 77 — Chapter II · NEGLIGENT INTERFERENCE (continued 2)

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.