See also Redington v. Pacific Co., 107 Cal. 317, 323–324; Belt Line R. Co. v. Banicki, 102 Ill. App. 642; Union R. Co. v. Henry, 36 Kan. 565; French v. Buffalo R. Co., 2 Abb. Dec. 196, 200–201, 4 Keyes 108, 113–114; Cederson v. Navigation Co., 38 Or. 343; Lockwood v. Belle City R. Co., 92 Wis. 97, 111–113; Astin v. Chicago R. Co., 143 Wis. 477.
“The theory that there are three degrees of negligence described by the terms slight, ordinary, and gross, has been introduced into the common law from some of the commentators on the Roman law. It may be doubted if these terms can be usefully applied in practice. Their meaning is not fixed, or capable of being so. One degree, thus described, not only may be confounded with another, but it is quite impracticable exactly to distinguish them. Their signification necessarily varies according to circumstances, to whose influence the courts have been forced to yield, until there are so many real exceptions that the rules themselves can scarcely be said to have a general operation. In Storer v. Gowen, 18 Maine, 177, the Supreme Court of Maine says: ‘How much care will, in a given case, relieve a party from the imputation of gross negligence, or what omission will amount to the charge, is necessarily a question of fact, depending on a great variety of circumstances which the law cannot exactly define.’ Mr. Justice Story, Bailments, § 11, says: ‘Indeed, what is common or ordinary diligence is more a matter of fact than of law.’ If the law furnishes no definition of the terms gross negligence, or ordinary negligence, which can be applied in practice, but leaves it to the jury to determine, in each case, what the duty was, and what omissions amount to a breach of it, it would seem that imperfect and confessedly unsuccessful attempts to define that duty had better be abandoned.
“Recently, the judges of several courts have expressed their disapprobation of these attempts to fix the degrees of diligence by legal definitions, and have complained of the impracticability of applying them. Wilson v. Brett, 11 Meeson and Wels. 113; Wyld v. Pickford, 8 ibid. 443, 461, 462; Hinton v. Dibbin, 2 Q. B. 646, 651. It must be confessed that the difficulty in defining gross negligence, which is apparent in perusing such cases as Tracy et al. v. Wood, 3 Mason 132, and Foster v. The Essex Bank, 17 Mass. 479, would alone be sufficient to justify these complaints. It may be added that some of the ablest commentators on the Roman law, and on the civil code of France have wholly repudiated this theory of three degrees of diligence, as unfounded in principles of natural justice, useless in practice, and presenting inextricable embarrassments and difficulties. See Toullier’s Droit Civil, 6th vol., p. 239, etc.; 11th vol., p. 203, etc.; Makeldey, Man. Du Droit Romain, 191.” Curtis, J., in Steamboat v. King, 16 How. 469, 474 (injury to gratuitous passenger).
“Confusion has arisen from regarding negligence as a positive instead of a negative word. It is really the absence of such care as it was the duty of the defendant to use. A bailee is only bound to use the ordinary care of a man, and so the absence of it is called gross negligence. A person who undertakes to do some work for reward to an article must exercise the care of a skilled workman, and the absence of such care in him is negligence. Gross, therefore, is a word of description, and not a definition; and it would have been only introducing a source of confusion to use the expression gross negligence, instead of the equivalent, a want of due care and skill in navigating the vessel, which was again and again used by the Lord Chief Justice in his summing up.” Willes, J., in Grill v. General Collier Co., L. R. 1 C. P. 600.
As to the standard for physicians, see McNevins v. Lowe, 40 Ill. 209; Small v. Howard, 128 Mass. 131; Luka v. Lowrie, 171 Mich. 122; Booth v. Andrus, 91 Neb. 810; McCandless v. McWha, 22 Pa. St. 261.
[78]. Statement rewritten. Only part of case is given.
[79]. The word gross was struck out by chap. 375, Acts of 1907, § 1.
[80]. Compare Martin v. Boston R. Co., 205 Mass. 16; Devine v. New York R. Co., 205 Mass. 416.
[81]. For other cases of statutory degrees of negligence, see Seaboard R. Co. v. Cauthen, 115 Ga. 422; Louisville R. Co. v. Long, 94 Ky. 410; Western Tel. Co. v. Reeves, 34 Okl. 468; Davis v. Railroad Co., 63 S. C. 370. That the wanton and reckless disregard of consequences which makes a defendant liable at common law to a plaintiff not in the exercise of due care is something more than negligence gross in degree, see Birmingham R. Co. v. Pinckard, 124 Ala. 372; Denman v. Johnston, 85 Mich. 387; Banks v. Braman, 188 Mass. 367; Southern Mfg. Co. v. Bradley, 52 Tex. 587; Barlow v. Foster, 149 Wis. 613.
[82]. Statement of facts abridged. Only so much of the case is given as relates to one point. Arguments omitted.