part may not readily receive injury; even a trespasser may have a remedy if hurt by a spring-gun set by the owner; furthermore, on some premises trespassing is not unusual.

Use of Highways. The right to use a highway or street for purposes of travel must be exercised with due care to others using it. In driving a horse and vehicle or an automobile through the streets, care, and sometimes great care, is necessary to avoid collisions or to avoid frightening horses or doing some injury otherwise; it is necessary to use the degree of care that prudent, careful, skilful men find necessary under the circumstances.

Occupation of Highways. If a city or town official, or a contractor for public or private improvements, when acting with due authority, tears up the street, or digs a trench, or otherwise interferes with travel, he must protect it, perhaps by a railing or a barrier by day, certainly by suitable lighting by night, so that travelers exercising due care shall not be injured.

A householder, or any abutter on a highway, must exercise similar care when he lawfully sets out ash barrels, or builds hatchways, or when he places any obstacles on the sidewalk.

Others' Real Property. It has been said that a man has a right to dig in his own land; furthermore a man has a right to build a house on his own land; the rights are reasonably regarded as equal. The man who digs must not dig negligently, but must at least give his neighbor, the owner of the house, an opportunity to shore up and protect it; if the owner is negligent and does not shore it, the digger has the right to dig, and may even shore up his neighbor's house and charge the expense to the owner.

Duty from Contract or Statute. The action which is negligently performed may grow out of a contract, or it may be imposed by statute, or it may follow from the general exercise of a man's rights as a citizen or member of the community and a user of its facilities.

Bailment. Whenever, by arrangement, an owner puts his goods in the hands of another whom we call the "bailee," and the owner is entitled to receive them again, negligence shall not be exercised by the bailee either in the use, or in the holding and care of the goods. How much care is due depends upon the nature of the case.

1. Are the goods held or used for the benefit of the bailee? In such case considerable care must be taken.

2. Are the goods held for the benefit solely of the owner, and without payment for the service? Slight care only is necessary.

3. Are the goods held for mutual benefit? Ordinary care suffices. Duty from Bailee. At one time three classes of negligence were recognized, growing out of the conditions above described; gross, ordinary, and

slight negligence; but the tendency is otherwise of late. Different degrees of care are necessary, it is true, but negligence is the result of lack of that care which the circumstances demand," and the degree of care which may be negligence in one of the above cases may not be in another.

Duty to Bailee. It is further true that where an owner allows a bailee to use his wagon, for instance, the owner is negligent if the wagon is furnished in a seriously imperfect condition. The owner's obligation to a man who hires is greater than to a man who borrows; the borrower has no right to demand approximately perfect repair and safety before the owner consents to loan the wagon. It would be somewhat different if he

rented it; especially if he were in the habit of renting it.

In the case of common carriers, or warehousemen, in holding goods during repairs, and in many other ways, the above subject of bailments, as it is called, is of much importance and some difficulty, but further attention does not seem wise here.

Professional Service. In the case of professional service, one must not be negligent. What amount of care is necessary for the lawyer, the doctor, the engineer, the contractor? It is well settled that either one must exercise that degree of precaution, vigilance, diligence, and skill which a reasonable, prudent, skilful man of his profession or occupation would exercise. Sometime later it may be necessary to use the skill which a skilful and properly educated man would use; but probably "skilful" includes the effect of education even now. A lawyer does not guarantee to win his case; a doctor does not agree to effect a cure. Neither lawyer nor doctor can be, nor is, free from liability to error in some part of the work; nor is the engineer or contractor. A lawyer must understand the law; the doctor must have adequate knowledge of the practice of medicine; the engineer must understand the laws of mechanics and the behavior of materials; the contractor must understand labor and materials and processes necessary in his work. The care necessary "under the circumstances of the case " is the requisite. Probably the ordinary country doctor would not in general be justified in attempting an intricate surgical operation except in an emergency. An engineer whose practice had been mainly in surveying would not ordinarily be justified in designing a bridge of unusual size and importance.

Proximate Cause. In whatever line of action or inaction it may occur, the negligence must be the proximate cause of the injury, and for this it is ordinarily enough that a chain of circumstances is set in motion which naturally results in the injury; yet if an intervening, independent accidental circumstance occurs without which no injury would have resulted, there can be no claim of negligence; nor is there liability for an accident if a reasonable, careful man could not have foreseen the unfortunate result.

Contributory Negligence. Nor under the Common Law can a man be held responsible, even if he has been negligent, if as an intervening cause the person injured has himself been negligent in a way which has contributed to the injury. This is the doctrine of "contributory negligence which has been of much importance, especially where relations of employer and employed are concerned; and a considerable amount of Statute Law has been enacted first and last touching contributory negligence.

Comparative Negligence. In some cases there has been an attempt by statute to discriminate as to the "comparative negligence" of two parties. If the party injured contributed in any material degree to the result, the Common Law excused the party whose negligence primarily caused the injury; the doctrine of comparative negligence is not generally adopted.

While, as has been stated, the tendency now is not to recognize "degrees of negligence" nevertheless the statutes of some States do distinguish between simple and " gross " negligence.

Essentials of Negligence. In order to establish negligence in law, there must be:

1. A legal duty.

2. A neglect of this duty.

3. Injury to the one to whom the duty is owed.

4. A causal connection between the breach of duty and the injury, which makes the one responsible for the other.

Evidence. Evidence sufficient to satisfy a jury is necessary upon these points. An accident alone is not proof of negligence. It may be that the only practical means of establishing the duty is to show that the person injured was in the exercise of his rights, which it is the duty of others to respect. It is necessary to establish as facts, the acts which are claimed to constitute negligence, in such a way and in such sequence, as to satisfy reasonable men that the acts constituted negligence.

Burden of Proof. To establish negligence, the burden of proof is naturally upon the plaintiff, the one injured by the neglect. But what about contributory negligence? In some States it is sufficient that the facts presented by the plaintiff fail to show contributory negligence. In others, as in Massachusetts, it is required that the plaintiff shall establish definitely his freedom from contributory negligence. In the first case the burden of proof as to contributory negligence is in effect on the defendant; in the second case clearly on the plaintiff. In some trials the difference means the winning or losing of the case, and the rule is different in different States.

Examples. As a matter of evidence, in the case of an alleged defect in highway, sidewalk, machine, or structure, evidence of the condition of the highway or machine just before or just after the accident will be

admissible as bearing upon the condition at the time of the accident; and it is desirable, if possible, to have testimony that the condition had not changed; these points are definitely of importance for the engineer to appreciate.

Functions of Judge and Jury. When the evidence is in, it is usually a question for the jury to determine whether or not, from the facts presented, there was negligence. In general, in lawsuits when there is no inharmonious testimony, when the facts are not in dispute, the judge decides what law applies to these established facts. In a case of negligence, however, the jury decides whether the facts existing do show a lack of care; in other words, whether there was a lack of care is a matter of fact and not a question of law. Sometimes when, as it is said, it is clear that reasonable men could come to but one conclusion, the judge will settle the matter as a question of law, but for the engineer this feature of a trial is of minor importance.

Measure of Damages. What is the measure of damages? In the case of injury to property, it is in general the difference in value before and after the offense. In the case of personal injuries, loss of time, expense of illness, decrease in capacity for work, bodily disfigurement and pain, mental suffering, shock or fright; all of these may have an influence upon the award; and in the case of gross negligence, exemplary damages may be awarded from a punitive standpoint. In some cases the loss of services of the person injured, a wife, daughter, or servant, may be the measure of the damage.

Care and Foresight by Engineers. While securing evidence is an important function of the engineer in many cases of negligence, a more important duty is for the engineer to exercise sufficient care and foresight to properly design work under his control or advice, to adequately maintain it, and to see that the operation is in good hands and that proper methods are used, so that few if any accidents shall occur which are not due to the contributory negligence of any one who may suffer injury. The engineer should intend to exert more skill, care, and diligence than the law definitely demands of him; this as a matter of good business. As an example, many railroads, both as to signals and as to braking apparatus, have made improvements more frequently than the law could demand, fairly interpreted; no doubt, other illustrations will occur to the reader.

The subject of negligence is of great importance in considering the relations of master and servant, or employer and employee, and in the chapter on agency, master and servant, some additional attention will be given to negligence.

TRESPASS

Definition. A duty exists not (a) to enter another's lands without permission, nor (b) to interfere with his possession of personal property. A violation of this duty is called "trespass."

Trespass and License. The engineer and contractor have special interest in trespass upon lands, as circumstances may make it easy for them to offend in this way. It should be understood that it is not necessary always to secure specific permission to enter a man's premises; whoever has the right to possession of land holds it in general subject to easements or licenses of some sort, and there are several classes of license.

Every one in business impliedly invites the public to enter his place of business, and, similarly, every householder invites certain tradesmen and neighbors to enter his grounds and perhaps his house; there are often limitations imposed as to the extent of the invitation. In other cases, the owner or lessee or tenant expressly invites certain persons upon his land to perform certain specific acts; such license may, in general, be recalled at any time.

Legal Entry. The law in some cases permits an entry; in case of a conflagration, the public authorities enter, and with dynamite demolish the building in order to stay the course of the flames. Where a highway is impassable, the traveler may lawfully enter upon adjoining lands; this as a matter of Common Law; but curiously enough where there is only a right of way its limits must not be transgressed.

Surveyor's Trespass or License. A surveyor with his rodman enters certain premises to make inquiries and sometimes does this under license; if he afterwards remains on the land without permission, in order to make a survey, he is doubtless a trespasser. Surveyors frequently do enter lands without previous permission and there is seldom any objection. They lay themselves liable to a suit for trespass; but ordinarily they can take the risk that no exception will be taken to their action; the damages probably would be small, or nominal, but any misdemeanor committed may result in exemplary damages which may be of considerable amount.

Entry under Rights of Eminent Domain. The law in most States allows a city, a railroad, or a water works company to take lands for public uses from any owner by legal process under the "right of eminent domain," and, when this process has been pursued to the proper point, the entry on the land becomes lawful; but if the city or town neglects to use this legal process, it has no more right on the land than any other trespasser and may be made to pay damages independent of whatever may be awarded later in the eminent domain proceedings if these are afterwards instituted.