135 F. 74 | 7th Cir. | 1905
(after stating the facts).
The declaration counts on “gross negligence.” Though the plea shows that the contract between the express company and the defendant contained an exemption from the consequences of “gross negligence,” the plea can be taken only as relying on a forgiveness of “negligence,” because Kelly did not authorize the express company to make a broader contract on his behalf.
If the declaration be construed to charge the defendant only with “negligence,” the plea presents an absolute bar. Baltimore, etc., R. Co. v. Voight, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560; Northern Pacific Ry. Co. v. Adams, 192 U. S. 440, 24 Sup. Ct. 408, 48 L. Ed. 513; Boering v. Chesapeake Beach Ry. Co., 193 U. S. 442, 24 Sup. Ct, 515, 48 L. Ed. 742; Blank v. Ill. Cent. R. Co., 182 Ill. 332, 55 N. E. 332; Louisville, etc., R. Co. v. Keefer, 146 Ind. 21, 44 N. E. 796, 38 L. R. A. 93, 58 Am. St. Rep. 348; Pittsburgh, etc., R. Co., v. Mahoney, 148 Ind. 196, 46 N. E. 917, 47 N. E. 464, 40 L. R. A. 101, 62 Am. St Rep. 503; Russell v. Pittsburgh, etc., R. Co., 157 Ind. 305, 61 N. E. 678, 55 L. R. A. 253, 87 Am. St. Rep. 214; Payne v. Terre Haute,
So the question comes to this: Does the injection of the word “gross” into the declaration make out a case despite the plea?
Some books and cases speak of negligence as slight, ordinary, and gross. If one owes great care, his failure to come up to the mark is called “slight negligence”; if ordinary care, “ordinary negligence”; if slight care, “gross negligence.” But why stop there? Why not subdivide each of the three into three further classes ? For example: If one owes great care, he may have missed the mark in one instance a foot (slight), in another a yard (just an ordinary miss), and in yet another a mile (gross). And similarly if one owes ordinary care or slight care. It seems to us that the whole attempt to classify negligence has resulted from a misapprehension. “Negligence” is merely a word of denial. “Care” is the positive word. It is familiar and sound doctrine that there are degrees of care. But “care” cannot properly be divided into abstract and absolute classes. The quantum of care required in a particular case is determined from the relations of the parties and the facts of the situation, and is proportionate to the danger reasonably to be apprehended. Whatever the required degree of care, the failure to measure up to it is the ground of complaint. But failure is failure. The cause of action flows from the failure to exercise the full degree of care that was due. The injuries are what they are. The innocent sufferer is entitled to full compensation on account of the defendant’s failure to bestow the fullness of care demanded by the situation. He is to receive no more, no less, than full compensation, because, though the defendant’s lack may be a variable, any lack supplies a cause of action, and his injuries, which measure the value of the cause of action, are a constant.
The division of negligence into slight, ordinary, and gross may have originated in an endeavor, unconscious, perhaps, to justify exemplary damages where only compensative should be allowed. One who unintentionally fails in his duty, and thereby causes an injury, should make complete compensation. But to warrant punishment, there must be an actual or constructive intent to inflict the injury. Negligence and willfulness are as unmixable as oil and water. “Willful negligence” is as self-contradictory as “guilty innocence.”
The substantive remains the same substantive, whatever the adjective. In Railroad Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627, the Supreme Court said:
“In each case the negligence, whatever epithet we give it, is failure to bestow the care and skill which the situation demands; and hence it is more strictly accurate, perhaps, to call it simply ‘negligence.’ And this seems to be the tendency of modern authorities. * * * In the case before us, the law, in the absence of special contract, fixes the degree of care and diligence due from the railroad company to the persons carried on its trains. A failure to exercise such care and diligence is negligence. It needs no epithet properly and legally to describe it.”
See, also, Milwaukee, etc., Ry. Co. v. Arms, 91 U. S. 489, 492, 23 L. Ed. 374; Purple v. Union Pacific R. Co., 114 Fed. 123, 51 C. C. A. 564, 57 L. R. A. 700.
The judgment is affirmed.