The standard of duty does not vary with individual ability. it is both easier and more convincing to prove this than to show in a general way what a prudent man in the defendant's place ought to have known. In an extreme case reckless omission to use care, after notice of the risk, may be held, as matter of fact, to prove a mischievous intention or, in the terms of Roman law, culpa lata may be equivalent to dolus. For purposes of civil liability it is seldom (if ever) necessary to decide this point. We have assumed that the standard of duty is not the foresight and caution which this or that particular man is capable of, but the foresight and caution of a prudent man the average prudent man, or, as our books rather affect to say, a reasonable man-standing in this or that man's shoes (k). This idea so pervades the mass of our authorities that it can be appreciated only by some familiarity with them. In the year 1837 it was formally and decisively enounced by the Court of Common Pleas (1). The action was against an occupier who had built a rick of hay on the verge of his own land, in such a state that there was evident danger of fire, and left it there after repeated warning. The hayrick did heat, broke into flame, and set fire to buildings which in turn communicated the fire to the plaintiff's cottages, and the cottages were destroyed. At the trial the jury were directed "that the question for them to consider was whether the fire had been occasioned by gross negligence on the part of the defendant," and "that he was bound to proceed with such reasonable caution as a prudent man would have exercised under such circumstances." A rule for a new trial was obtained "on the ground that the jury should have been (4) Compare the Aristotelian use of ὁ φρόνιμος οι ὁ σπουδαῖος in determining the standard of moral duty. (1) Vaughan v. Menlove (1837) 3 Bing. N. C. 468. directed to consider, not whether the defendant had been guilty of gross negligence with reference to the standard of ordinary prudence, a standard too uncertain to afford any criterion; but whether he had acted bona fide to the best of his judgment; if he had, he ought not to be responsible for the misfortune of not possessing the highest (m) order of intelligence." The Court unani mously declined to accede to this view. They declared that the care of a prudent man was the accustomed and the proper measure of duty. It had always been so laid down, and the alleged uncertainty of the rule had been found no obstacle to its application by juries. It is not for the Court to define a prudent man, but for the jury to say whether the defendant behaved like one. "Instead of saying that the liability for negligence should be coextensive with the judgment of each individual—which would be as variable as the length of the foot of each individual-we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe" ("). Quite lately the same principle has been enforced in the Supreme Court of Massachusetts. "If a man's conduct is such as would be reckless in a man of ordinary prudence, it is reckless in him. Unless he can bring himself within some broadly defined exception to general rules, the law deliberately leaves his personal equation or idiosyncracies out of account, and peremptorily assumes that he has as much capacity to judge and to foresee consequences as a man of ordinary prudence would have in the same situation (0). (0) Commonwealth v. Pierce (1884) 138 Mass. 165, 52 Am. Rep. 264, per Holmes J. See too per Bayley J. in Jones v. Bird (1822) 5 B. & A. at pp. 845-6. Diligence includes competence. Negli gence a question of mixed fact and law. It will be remembered that the general duty of diligence includes the particular duty of competence in cases where the matter taken in hand is of a sort requiring more than the knowledge or ability which any prudent man may be expected to have. The test is whether the defendant has done "all that any skilful person could reasonably be required to do in such a case " (p). This is not an exception or extension, but a necessary application of the general rule. For a reasonable man will know the bounds of his competence, and will not intermeddle (save in extraordinary emergency) where he is not competent (q). II.-Evidence of Negligence. Due care and caution, as we have seen, is the diligence of a reasonable man, and includes reasonable competence in cases where special competence is needful to ensure safety. Whether due care and caution have been used in a given case is, by the nature of things, a question of fact. But it is not a pure question of fact in the sense of being open as a matter of course and without limit. Not every one who suffers harm which he thinks can be set down to his neighbour's default is thereby entitled to the chance of a jury giving him damages. The field of inquiry has limits defined, or capable of definition, by legal principle and judicial discussion. Before the Court or the jury can proceed to pass upon the facts alleged by the plaintiff, the Court must be satisfied that those facts, if proved, are in law capable of supporting the inference that the defendant has failed in what the law requires at his hands. In the current forensic phrase, there must be evidence of negligence. The peculiar relation of the judge to the jury in our common law system has given occasion for frequent (p) Bayley J., 5 B. & A. at p. (2) See p. 25, above. and minute discussion on the propriety of leaving or not leaving for the decision of the jury the facts alleged by a plaintiff as proof of negligence. Such discussions are not carried on in the manner best fitted to promote the clear statement of principles; it is difficult to sum up their results, and not always easy to reconcile them. The tendency of modern rulings of Courts of Appeal has been, if not to enlarge the province of the jury, to arrest the process of curtailing it. Some distinct boundaries, however, are established. Where there is no contract between the parties, the Burden of proof. burden of proof is on him who complains of negligence. He must not only show that he suffered harm in such a manner that it might be caused by the defendant's negligence; he must show that it was so caused, and to do this he must prove facts inconsistent with due diligence on the part of the defendant. "Where the evidence given is equally consistent with the existence or non-existence of negligence, it is not competent to the judge to leave the matter to the jury " (»). Nothing can be inferred, for example, from the bare fact that a foot-passenger is knocked down by a carriage in a place where they have an equal right to be, or by a train at a level crossing (s). Those who pass and repass in frequented roads are bound to use due care, be it on foot or on horseback, or with carriages: and before one can complain of another, he must show wherein care was wanting. "When the balance is even as to which party is in fault, the one who relies upon the negligence of the other is (r) Williams J. in Hammack v. White (1862) 11 C. B. N. S. 588, 31 L. J. C. P. 129; Cotton v. Wood (1860) 8 C. B. N. S. 568, 29 L. J. C. P. 333; Wakelin v. L. & S. W. (s) Wakelin v. L. & S. W. R. Co., bound to turn the scale" (t). It cannot be assumed, in the absence of all explanation, that a train ran over a man more than the man ran against the train (u). If the carriage was being driven furiously, or on the wrong side of the road, that is another matter. But the addition of an ambiguous circumstance will not do. There Thus in Cotton v. Wood (v) the plaintiff's wife, having safely crossed in front of an omnibus, was startled by some other carriage, and ran back; the driver had seen her pass, and then turned round to speak to the conductor, so that he did not see her return in time to pull up and avoid mischief. The omnibus was on its right side and going at a moderate pace. Here there was no evidence of negligence on the part of the defendant, the owner of the omnibus (a). His servants, on the plaintiff's own showing, had not done anything inconsistent with due care. was no proof that the driver turned round to speak to the conductor otherwise than for a lawful or necessary purpose, or had any reason to apprehend that somebody would run under the horses' feet at that particular moment. Again if a horse being ridden (y) or driven (z) in an ordinary manner runs away without apparent cause, and in spite of the rider's or driver's efforts trespasses on the footway and there does damage, this is not evidence of negligence. The plaintiff ought to show positively want of care, or want of skill, or that the owner or person in charge of the horse knew it to be unmanageable. "To hold that the mere fact (t) Erle C. J., Cotton v. Wood, note (r) last page. (u) Lord Halsbury, 12 App. Ca. at p. 45. (v) See note (r), above. (x) It would be convenient if one could in these running-down cases on land personify the vehicle, like a ship. (y) Hammack v. White (1862) 11 C. B. N. S. 588, 31 L. J. C. P. 129. (z) Manzoni v. Douglas (1880) 6 Q. B. D. 145, 50 L. J. Q. B. 289, where it was unsuccessfully attempted to shake the authority of Hammack v. White. The cases relied on for that purpose belong to a special class, |