ON THE LAW OF NEGLIGENCE. BY HORACE SMITH, B.A. OF TRINITY HALL, CAMBRIDGE, EDITOR AND OF THE INNER TEMPLE AND MIDLAND CIRCUIT, BARRISTER-AT-LAW. STEVENS AND SONS, 119, CHANCERY LANE, 1880. PREFACE. THE" Law of Negligence" has not, I think, received that amount of attention from English text writers which its importance would seem to demand. The division of negligence into three classes, viz.: Neglect of duties requiring (1) ordinary, (2) more than ordinary, and (3) less than ordinary care appeared, upon the whole, to be a reasonable plan. This division is, no doubt, somewhat arbitrary; but it has the advantage of proceeding in some measure super antiquas vias, and it adapts itself to the increasing complexity of modern obligations. It cannot be doubted that in the progress of civilization a constantly increasing amount of care is required of men in proportion to the increased skill and intelligence which they are found to possess, to the increased difficulties of the duties which they undertake to perform, and to the keener sense of responsibility towards others which is characteristic of a more refined age. Thus it will be found, I think, that there is a tendency both in the recent judgments of the judges and in the enactments of the Legislature to widen the responsibilities of men in their conduct towards others. 66 Upon the whole, then, I have thought such a division of my work to be desirable as giving a clearer view of what care the law requires in the performance of duties generally. These divisions I have subdivided into different sections, each section dealing with a particular class of circumstances: as, for instance, "Duties of Owners of Property," " of Owners of Animals," " of Controllers of Highways," " of Physicians," " of Solicitors," &c., &c.; for I cannot doubt that for convenience of reference such subdivisions are extremely useful, and I have aimed, as far as possible, at rendering my work a practical treatise upon the law for the use of the profession. With regard to the manner in which the cases from the various reports have been dealt with, I have found it impossible within the proposed limits of this volume to discuss the judgments at any great length. I have endeavoured to state what I believe to be the result of a number of cases in the text, and in the note have given the names of the cases; generally indicating, in a few words in a bracket, what the principal fact was, so as to assist the memory of the reader and to enable the practitioner to find those cases which are most similar to the one which he has in hand; and sometimes I have offered some suggestion towards a just appreciation of the decision. The subject of negligence with respect to the management of ships has, I feel, been inadequately treated. Questions of negligence, causing the loss of goods or of the vessels themselves, are invariably complicated by the special contracts entered into, such as bills of lading, charter-parties, or insurances, regulations of navigation, the laws and customs of Maritime Courts, and other matters. The cases are numerous and intricate, and I have felt that my book would be overbalanced by a full discussion of the Law of Negligence as applied to shipping; but that some account of the subject ought to be given in order to render the work as complete as possible. I am indebted to Mr. Aspinall, of the Common Law Bar, for having kindly looked over this section, and given me the benefit of some suggestions, although I alone am responsible for any errors which may appear. I have availed myself of the learning and philosophic reasoning of Wharton, the lucid exposition of Shearman and Redfield, and the suggestive ingenuity of Campbell. I cannot hope that I have succeeded in combining all their merits, and I am sensible that my work may have serious defects of its own; but after the care and labour I have bestowed I cannot help believing that I have produced a useful book. HORACE SMITH. 4, PAPER BUILDINGS, TEMPLE, May, 1880. |