not in the first instance bound to do anything at all; but by some independent motion of his own he has given hostages, so to speak, to the law. Thus I am not compelled to be a parent; but if I am one, I must maintain my children. I am not compelled to employ servants; but if I do, I must answer for their conduct in the course of their employment. The widest rule of this kind is that which is developed in the law of Negligence. One who enters on the doing of anything attended with risk to the persons or property of others is held answerable for the use of a certain measure of caution to guard against that risk. To name one of the commonest applications, "those who go personally or bring property where they know that they or it may come into collision with the persons or property of others have by law a duty cast upon them to use reasonable care and skill to avoid such a collision" (c). The caution that is required is in proportion to the magnitude and the apparent imminence of the risk: and we shall see that for certain cases the policy of the law has been to lay down exceptionally strict and definite rules. While some acts and occupations are more obviously dangerous than others, there is hardly any kind of human action that may not, under some circumstances, be a source of some danger.

Thus we arrive at the

General duty of caution in acts. general rule that every one is bound to exercise due care towards his neighbours in his acts and conduct, or rather

(c) Lord Blackburn, 3 App. Ca. at p. 1206.

General duty of caution in acts. Every person is bound to exercise that degree of care, with reference to others, which is dictated by common prudence. Also, the care exercised must, in each instance, be commensurate with the apparent avoidable danger. "A careful man is guided by a reasonable estimate of possibilities. His precaution is measured by that which appears likely in the usual course of things. The rule does not require him to use every possible precaution to avoid injury to others. He is only required to use such reasonable precautions to prevent accidents as would ordinarily be

omits or falls short of it at his peril; the peril, namely, of being liable to make good whatever harm may be a proved consequence of the default (d).

Overlapping of contract and tort. In some cases this ground of liability may co-exist with a liability on contract towards the same person, and arising (as regards the

(d) Cp. per Brett M. R., Heaven v. Pender (1883), 11 Q. B. Div. at p. 507.

adopted by careful, prudent persons under like circumstances." Baker v. Savage, 45 N. Y. 191, followed in Schmidt v. S. & H. P. Ry. Co., 132 N. Y. 566; 30 N. E. Rep. 389. See Indianapolis Union Ry. Co. v. Boettcher, 131 Ind. 82; 22 N. E. Rep. 551; Presby v. Grand Trunk Ry. (N. H.), 22 At. Rep. 554; Albee v. The Chappaqua Shoe Mfg. Co., 62 Hun, 223; 16 N. Y. S. Rep. 687; G. C. & S. F. Ry. Co. v. Box, 81 Tex. 670; 17 S. W. Rep. 375; S. W. Tel. & Telephone Co. v. Robinson, 50 Fed. Rep. 810; 1 C. C. A. 684; Schubert v. Clark Co., 49 Minn. 331; Heizer v. Kingsland etc. Co., 110 Mo. 605; 19 S. W. Rep. 630; McNally v. Colwell, 91 Mich. 527; 52 N. W. Rep. 70; Cowley v. Colwell, 91 Mich. 537; 52 N. W. Rep. 73; Dehring v. Comstock, 78 Mich. 153; 43 N. W. Rep. 1049; Unger v. Forty-second etc. R. Co., 51 N. Y. 501; Maker v. Slater Mill Power Co., 15 R. I. 112; Kalbus v. Abbott, 77 Wis. 627; 46 N. W. Rep. 810; Shelly v. City of Austin, 74 Tex. 608; 12 S. W. Rep. 753.

Thus, "The law imposes upon all persons using a highway, whether upon land or water, the obligation to exercise ordinary care to avoid inflicting injury upon others." Kelsey v. Barney, 12 N. Y. 429; City of Austin v. Ritz, 72 Tex. 392; 9 S. W. Rep. 884; Middlestadt v. Morrison (Wis.), 44 N. W. Rep. 1103; Potter v. Moran, 61 Mich. 60; 27 N. W. Rep. 854; Stringer v. Frost, 116 Ind. 477; 19 N. E. Rep. 331; Wendell v. N. Y. Cent. etc. R. R. Co., 91 N. Y. 420; Williams v. Grealy, 112 Mass. 79; Harris v. Simon (N. C.), 10 S. E. Rep. 1076; Hudson v. Houser, 123 Ind. 309; 24 N. E. Rep. 243; Riley v. Farnum, 62 N. H. 42; Alexander v. Humber, 86 Ky. 565; Murphy v. Orr, 96 N. Y. 114.

Overlapping of contract and tort. Where there exists between the parties relations of duty as defined above and they have been disregarded, the right of action in favor of the injured party against the negligent party is not prohibited by the fact that the duty itself arose out of a contract. The foundation of an action may be a contract, and the gravamen of it the breach of the contract. Unless the contract creates a relation, out of which relation springs a duty, independent of the mere contract obligation, though there may be a breach of the contract, there is no tort, since there is no duty to be violated. "It may be granted that an omission to perform a contract is never a tort, unless

breach) out of the same facts. Where a man interferes gratuitously, he is bound to act in a reasonable and prudent manner according to the circumstances and opportunities of the case. And this duty is not affected by the fact, if so it be, that he is acting for reward, in other words, under a contract, and may be liable on the contract (e). The two duties are distinct, except so far as the same party cannot be compensated twice over for the

special rules defining the duty of occupiers (see Chap. XII. below). And, so far as the judgment of Brett M. R. pur. ported to exhibit those rules as a simple deduction from the general rule as to negligence, it is submitted that the dissent of the Lords Justices was well founded. And see Beven on Negli. gence, 63.

(e) This appears to be the substance of the rule intended to be laid down by Brett M. R. in Heaven v. Pender (1883), 11 Q. B. D. at pp. 507-510; his judgment was however understood by the other members of the Court (Cotton and Bowen L. JJ.) as formulating some wider rule to which they could not assent. The case itself comes under the the omission is also an omission of a legal duty, yet, such legal duty may arise, not merely out of certain relations of trust and confidence, inherent in the nature of the contract itself, but may spring from extraneous circumstances, not constituting elements of the contract as such, although connected with and dependent upon it, and born of that wider range of legal duty which is due from every man to his fellow, * The whole doctrine is accurately and concisely stated in 1 Chit. Pl. 135 that' if a common-law duty results to be sued in tort from any negligence or misfeasance in the execution of the contract.'" Rich v. New York Cent. etc. R. Co., 87 N. Y. 389; 11 Am. and Eng. R. Cas. 594, citing Kerwhacker v. C. C. & C. R. Co., 3 Ohio St. 188; Benton v. Pratt, 2 Wend. 385; Bebinger v. Sweet, 1 Abb. N. C. 263. See Robinson v. Threadgill, 13 Ired. 39; Champlain v. Rowley, 13 Wend. 261; Dean v. McLean, 48 Vt. 412; 21 Am. Rep. 130; Bell v. Cummings, 3 Sneed (Tenn.), 149; Vanleen v. Fain, 6 Humph. 104; Horsely v. Branch, 1 Id. 198; Lane v. Cameron, 38 Wis. 603.

"The principle running through all the cases seem to be that where the action is maintainable for the tort simply, without reference to any contract between the parties, the action is one of tort purely, although the existence of a contract may have been the occasion or furnished the opportunity for committing the tort. But where the action is not maintainable without proving and pleading the contract, where the gist of the action is the breach of the contract, either by malfeasance or nonfeasance, it is, in substance, whatever may be the form of the pleading, an action on the contract, and hence all persons jointly liable must be sued." Whittaker v. Collins, 34 Minn. 299. See Weld v. Saratoga & S. R. Co., 19 Wend. 533.

same facts, once for the breach of contract and again for the wrong. Historically the liability in tort is older; and indeed it was by a special development of this view that the action of assumpsit, afterwards the common mode of enforcing simple contracts, was brought into use (f). "If a smith prick my horse with a nail, etc., I shall have my action upon the case against him, without any warranty by the smith to do it well.. For it is the duty of every artificer to exercise his art rightly and truly as he ought" (g). This overlapping of the regions of Contract and Tort gives rise to troublesome questions which we are not yet ready to discuss. They are dealt with in the concluding chapter of this book. Meanwhile we shall have to use for authority and illustration many cases where there was a co-existing duty ex contractu, or even where the duty actually enforced was of that kind. For the obligation of many contracts is, by usage and the nature of the case, not to perform something absolutely, but to use all reasonable skill and care to perform it. Putting aside the responsibilities of common carriers and innkeepers, which are peculiar, we have this state of things in most agreements for custody or conveyance, a railway company's contract with a passenger for one. In such cases a total refusal or failure to perform the contract is rare. The kind of breach commonly complained of is want of due care in the course of performance. Now the same facts may admit of being also regarded as a wrong apart from the contract, or they may not. But in either case the questions, what was the measure of due care as between the defendant and the plaintiff, and whether such care was used, have to be dealt with on the same principles. In other words, negligence in performing a contract and

(f) Cp. the present writer's "Principles of Contract," p. 141, 5th ed., and Prof. Ames's articles, "The History of Assumpsit," in Harv. Law Rev. ii. 1, 53.

(g) F. N. B. 94 D. As to the assump.

tion of special skill being a material element cp. Shiells v. Blackburne (1789), 2 H. Bl. 158, 2 R. R. 750; where " gross negligence" appears to mean merely actionable negligence.

negligence independent of contract create liability in different ways: but the authorities that determine for us what is meant by negligence are in the main applicable to both.

Definition of negligence. The general rule was thus stated by Baron Alderson: " Negligence is the omission to do something which a reasonable man, guided upon those

Definition of negligence. The American cases defining negligence are in harmony with the text, vide Great Western R. Co. v. Haworth, 39 Ill. 353; Chicago, etc. R. Co. v. Johnson, 103 Ill. 521, citing Towanda R. Co. v. Munger, 5 Denio, 267; Gardner v. Heartt, 3 Id. 236; Railroad Co. v. Jones, 95 U. S. 439; Great Western R. Co. v. Haworth, 39 Ill. 353. See Hammond v. Town of Mukwa, 40 Wis. 35; Wilson v. New York, etc. R. Co., 11 Gill, & J. 58; Kansas City etc. R. Co. v. Stoner, 49 Fed. Rep. 209; 4 U. S. App. 109; 1 C. C. A. 231; Doyle v. Chicago, St. P. & K. C. Ry. Co., 77 Ia. 607; 42 N. W. Rep. 555; Kaspari v. Marsh, 74 Wis. 566; 43 N. W. Rep. 368; Rosenfield v. Arwe, 44 Minn. 395; 46 N. W. Rep. 768; Simmons v. Everson, 125 N. -Y. 319; 26 N. E. Rep. 911; Tucker v. Illinois C. R. Co., 42 La. An. 114; 7 So. Rep. 124; Smethurst v. Barton Square Church, 148 Mass. 265; 19 N. E. Rep. 387; City of Anderson v. East, 117 Ind. 126; 19 N. E. Rep. 726; Holmes v. Drew, 151 Mass. 578; 25 N. E. Rep. 22; Galloway v. Chicago, etc. Ry. Co. (Ia.), 54 N. W. Rep. 447; Holmes v. Atchison, etc. R. Co., 48 Mo. App. 79; Texas & P. Ry. Co. v. Gorman (Tex. Civ. App.) 21 S. W. Rep. 158.

One may act in perfect good faith and still be guilty of gross negligence. Negligence and willfulness are the opposite of each other. They indicate radically different mental states. Lincoln v. Buckmaster, 32 Vt. 642; Sharp v. Bouner, 36 Ga. 418; Grand Trunk Ry. Co. v. Ives, 144 U. S. 47; 12 S. Ct. Rep. 679; Blaen Avon Coal Co. v. McCulloh, 59 Md. 403; Wallard v. Wortham, 84 Ill. 446; Noyes v. Shepherd, 30 Me. 173; McLelland v. Louisville, etc. R. Co., 94 Md. 276; Morgan v. Curley, 142 Mass. 107; Smith v. Goodman, 75 Ga. 198; West v. Forrest, 114 Mass. 519; Jefferson, etc. R. Co. v. Riley, 39 Ind. 568; Carter v. Louisville etc. R. Co., 98 Ind. 555; 8 Am. & Eng. R. Cas. 347; 22 Am. & Eng. R. Cas. 360; Brown v. Chicago, etc. R. Co., 54 Wis. 342; 3 Am. & Eng. R. Cas. 444; Columbus etc. R. Co. v. Bridges, 86 Ala. 448; Peoria Bridge Assn. v. Loomis, 20 Ill. 235; 71 Am. Dec. 263; Toledo etc. R. Co. v. Bryan, 107 Ind. 51; Cleveland etc. R. Co. v. Asbury, 120 Ind. 289; Louisville etc. R. Co. v. Filbern, 6 Bush, 574; 99 Am. Dec. 690; Lexington v. Lewis, 10 Bush, 677; Paducah etc. R. Co. v. Letcher (Ky.), 12 Am. & Eng. R. Cas. 61; Moody v. McDonald, 4 Cal. 297; Norfolk etc. R. Co. v. Ormsby, 27 Gratt. 455.

The questions which arise upon what constitutes negligence, usually