THE COMMERCIAL VEHICLE AND THE LAW.
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A Lucid Explanation of the Law of Negligence as it Affects the Use and Employment of Motor Vehicles.
PART THE SECOND.
IN THE FIRST article dealing with this important subject, published in the last issue of The Vontmerciul Motor, I dealt generally with the general acceptance of the term "negligence" and showed that the test as to whether or not negligence had contributed to the mishap was the question "was reasonable care used," the circumstances of the case
deciding what constitutes " reasonable care." .
• I dealt with four diffesent forms and combinations of negligence, and I now wish to deal with the fifth class of accident where negligence occurs on the part of D (defendant) and some third party : If the affective cause of the accident is D's negligence, then D is liable; if, on the other hand, it is shown that, although D was negligent, the affective cause of the accident was really the act of some third party, then D will not be liable. As an illustration we will take another case which has been, before the courts : D had agreed with P to keep P's horse in his field for so much a week. D negligently left the gate of his field open, so that the horse strayed into
a cricket field which bounded D's. land. The cricketers naturally tried to drive the horse back to its own field, but, in doing so they frightened the horse so that it injured itself against some fencing. It was held that D was liable to P for the injuries the horse sustained, for the damages to the horse arose through D's negligence in leaving the gate open, which was the approximate cause of the accident to the horse As to the Negligence of Some Third Party Alone.
Many accidents are caused by misfortune as distinguished from negligence. That is, the accident is not attributable to the negligence of anyone and is caused by circumstancea for which no one is to blame. It often happens that, when a case is tried in the Courts of Law it is found that, although the defendant caused the accident, in the popular sense of the term yet he is not legally responsible, for he was not guilty of negligence or anywrongful act. For instance, suppose D is driving a horse and cart along a public street—a horse which, to his knowledge, has always been quiet in traffic, and, for some unaseertained reason it. suddenly halts and collides with, and damages P's vehicle, despite the utmost efforts af D to avoid an accident. In these circumstances, D is not liable for the damage to P's vehicle, for the accident was not attributable to any negligent act or omission on D's part.
Damage must be the Natural Consequence of the Negligence..
A further important. point must be considered at this stage : As we have seen, if a, person is negligent and as a result of that negligence an accident happens, the negligent party is liable for the damages occasioned: But the negligent party is not liable for such damage as is too remote from the negligent act. He is only liable for such damage as is the natural consequence of his acts or, to express it in other words, for such damage as flows naturally from the negligence.
To give a simple example of what damage may be claimed : Suppose D is so negligent in driving his motor vehicle that he collide.s with P's motor vehicle. D is responsible for any of the following damages which his negligence may have occasioned :—(l) The B38 repair of the vehicle and any depreciation in value it has sustained as a result of the accident ; (2) the cost of hire of another vehicle while the damaged car is undergoing repair. (3) the doctor's bill for attending •
and the other occupants of the ear during their illness, caused by the shock or injury ustained by them as the result ofsthe accident, also the cost of any extra, nourishment which they may have been ordered by the doctor. (4) If P has been prevented from attending to his business as the result of his injuries, he is entitled to his loss of profit which he has been prevented from earning or his loss of wage or salary, as the case may be, and the same applies to the other occupants of P's ear. (5) Such damages as the jury. may award P or his passengers for the pain and suffering they have sustained.
All the above items of damage are the natural result of D's negligence; in other words, they are the damages which one might reasonably expect to arise when a person negligently drives into another vehicle. Now let me take a case when damages are toe remote : The well-known ease of Knoll and Long and Co. forms a good example. In this case a steam motor lorry was left standing, but unattended, in the street during the day-time. In order to start the lorry it was 'necessary to move three levers. Two drunken soldiers mounted thelorry and one of them succeeded in :setting it iii motion, with the result that it ran into the plaintiff's shop and damaged it.
The Courts held that it was not negligent to leave the lorry standing ; but, even if it were negligent so to do, then the damage done was not the affective or proximate result of the negligence, because the defendants, as reasonable men, could not anticipate that soldiers -would mount the lorry and move three different levers and so start-the machine. If the lorry could have been started merely, say, by pressing a button and there. were children playing about and the lorry had been started by a child, a different verdict might have been arrived at, for it would probably have been held 'that, to leave a lorry which could be so easily started, and started by a child, was negligence, as it is well known that children have a mischievous disposition, and it should have been within the contemplation of the, driver that a child might interfere with the lorry.
Not Liable if you Kill a Man, only if you Injure Him.
One often hears the expression that it is cheaper to kill a man than injure him. And, very often, this saying proves strictly true.
It is a strange anomaly of our comrrnon law, that if . through negligence you kill a man you are notliable in damages, but if you only injure him you are. This anomaly arose through the principle of law generally. stated in the old Latin • maxim, " aetio personalis moritor cum persona," which, translated, means "personal actions die with the man.' • The above principle, is really quite a logical one, for it is impossible to recompense a dead man for depriving him of his life.. By the middle of the nineteenth century, however, people began to realize that although you could not recompense a dead man, vet the relatives of the de-: ceased, in many cases, suffered pecuniary loss through . being deprived of the deceased's earning powers. In 1848 an Act, known as Lord Campbell's Act, came into force to remedy the hardship which, up to that date, '• had existed.
Effects of Lord Campbell's Act.
The Act provides that' where a person is killed through the 'wrongful act or negligence of anotnee person in such circumstances that, it the person killed had only been injured, he could'have brought an action for damages, the executor or administrator of a dead man may bring an action. The action must be brought for the benefit of certain relatives of the dead man. and no one else. The jury may award such damages as they may think proportionate to the injury resulting from the death. Such damages as are awarded are divided only among the husband or wife and the parents and children (which also include the grandparents, step-parents and grandchildren) and no one else, and in such proportions as the jury which tries the case may direct. iii considering the above, the following points must be remembered :— (1) The Act provides that. an action may be brought if the deceased person (had. he not been killed) could have brought an action. If, therefore, the deceased person was guilty of contributory negligence in the aiccident which caused his death., an action cannot be maintained under this Act.
(2) If the deceased, after he was injured and before he died, accepted a sum from the negligent party as compensation in settlement of his claim, no further action can be baought under the Act.
• (3) The person for whose benefit the action is brought must have suffered some pecuniary loss, however slight. Therefore, if a man is killed who had no private means of his own and was too old or infirm to work, no action is maintainable, for his relatives suffered no pecuniary loss by his death. In the same way, if a very young child of say three years of age is killed, no action is Maintainable, for the parents suffered no pecuniary loss through its death.
(4) No claim can be made for funeral (expenses, no doubt on the principle that a person must die and be buried some day and his estate will have to pay the expenses whether the death takes place now or in 50 years' time.
(5) If the person killed is a bachelor or spinster without parents, step-parents or grand-parents, no action is maintainable.
Liability for Negligence of Servants and Agents.
Not only is a person liable for injury to persons and property occasioned by his own negligence, but he is also, in certain circumstances, liable for damage oecaeionei by the negligence of his servants and agents,
As to servants: In the first place it is necessary to consider what constitutes a servant as distinguished from an agent or a sub-contractor.
Mr. Underhill in his. valuable work on Torts defines a servant as "a person employed by another, and subject to the ".commands of that other as to the way he shall do his work." An agent, on the other hand, is merely employed to accomplish certain results, but the mode in which he accomplishes those results is left to his discretion except so far as he may be limited by his agreement of agenv. A master is liable for the negligence OT his servant, if the negligence is committed during the course of his employment, and a master is also liable for a . wilful tort (tort meaning a wrongful act against some third party) when the tort, i.e., wrongful act, is cemmitted (1) within the scope of the servant's employment and (2) when it is intended for the benefit of the master, even though the master actually derives no benefit.
Now, to consider more fully the negligence of the servant for which his master is liable. in each ease the deciding factor will be : did the negligence take place during the servant's employment?
To-take a simple example, suppose a driver is sent to bring a, load from a. station. During his journey and through his negligence he injures P. Both the driver and his master are liable. On the other hand, suppose the driver uses the vehicle for his own purpose by leaving his Correct course in order to make a call on his own business or pleasure, and during the run negligently injures P. in these circumstances the driver, but not his master, is liable, as the accident did not occur. whilst the driver was performing any work for his master. Also in order to render the master liable the servant must be doing the work he was engaged to do, e.g., if a, driver's mate for his own purpose drives the vehicle and-negligently knocks down a pedestrian, the master is not liable, for the man was not engaged to drive. The reader will probably have noticed that, in all the cases we have considered so far, the negligence has been due to what is commonly called carelessness. Carelessness or negligence may be of so gross a kind as to amount to a crime ; for instance a person may drive a motorcar with such disregard for human safety that if he kills someone he may be guilty of manslaughter and be liable criminally •as well as civilly, but his master will only be liable for a civil action.
In most wrongful acts there is not this element of carelessness ; but, on the contrary, there is a deliberate intention to do the act.
If A, while in charge of a motorTan, fails to look where he is going and collides with B and knocks him. down, this is negligence for which A and A's master (if the aceident occurred within the scope of A's employment) are both liable, and if A deliberately drives the motorvan into Ws motorcar and throws B out, this is not negligence, but a deliberate wrongful act. A will, of course, be liable for any injuries B may suffer, and A's master will also be liable if two conditions are satisfied (1) if, at the time of the accident, A was driving in the course of his employment, and (2) if the act of colliding with B's motorcar was done by A for the benefit of his master. In other words, if A is negligent and damages B and it is established that A was negligent while performing his duties, then A's master is liable. When the act is not negligent but deliberate, it must be established, not only that the wrongful act occurred while A was performing his duties, but also that the act was done for the benefit of his master.
To give examples of the latter classes of case :— (1) A, whilst driving, fails to look where he is.-gaillg and knocks B down. Master is liable as well as A.
(2) A, whilst driving, sees a person in the way and out of spite runs him down. A's master is not liable, but A is liable both civilly and criminally.
(3) A driver of an omnibus, cOntrary to his employer's orders, deliberately .collides with a rival omnibus -in order to damage it, and so get the rival bus .out of corn-petition. A's, master is liable, for the wrongful act was done during A's employment and A did it because he thought it would be to his master's benefit to damage his rival.
If A had. done it purely out of spite against the other driver, A's master would not have been liable.
If one servant, either negligently or deliberately, injures another servant of his master in the same employment, the master is not liable. This is, an exception to the rule, and is known to lawyers as the doctrine of "common employment."
Also a master is not liable for the negligence or wrongful act of a person to whom his servant had delegated his (the servant's) duties.
A principal, as a rule, is not liable for the negligence of his agent as distinguished from his servant. There are exceptions to this rule, but they are so unlikely to occur in any connection with the driving of vehicles that it has been thought unnecessary to deal with them in these articles.
It should be remembered, however' that a person may be both an agent and a servant. If the negligent act occurs while the person is acting in his capacity of servant, the employer cannot escape liability for the act of his servant on the ground thathe is also his agent.