Contracts, torts. When considered in relation, to contracts, negligence may be divided into various degrees, namely, ordinary, less than ordinary, more than ordinary. 1 Miles' Rep. 40.
2. Ordinary negligence
is the want of ordinary diligence
; slight or less than ordinary negligence, is, the want of great diligence
; and gross or more than ordinary negligence, is the want of slight diligence
3. Three great principles of responsibility, seem naturally to follow this division.
4. - 1. In those contracts which are made for the sole benefit of the creditor, the debtor is responsible only for gross negligence, good faith
alone being required of him; as in tile case of a depositary, who is a bailee without reward; Story, Bailm. 62; Dane's Ab. c. 17, a, 2; 14 Serg. & Rawle, 275; but to this general rule, Pothier makes two exceptions. The first, in relation to the contract of a mandate, and the second, to the quasi contract
negotiorum gestorum; in these cases, he says, the party undertaking to perform these engagements, is bound to use necessary care. Observation Generale, printed at the end of the Traite des Obligations.
5. - 2. In those contracts which are for the reciprocal benefit of both parties, such as those of sale, of hiring, of pledge, and the like, the party is bound to take, for the object of the contract, that care which a prudent man ordinarily takes of his affairs, and he will therefore be held responsible for ordinary neglect. Jones' Bailment, 10, 119; 2 Lord Raym. 909; Story, Bailm. 23; Pothier, Obs. Gener. ubi supra
6. - 3. In those contracts made for the sole interest of the party who has received, and is to return the thing which is the object of the contract, such, for example, as loan for use, or commodatum
, the slightest negligence will make him responsible. Jones' Bailm. 64, 65; Story's Bailm. 237; Pothier, Obs. Gen. ubi supra.
7. In general, a party who has caused an injury or loss to another in consequence of his negligence, is responsible for all the consequence. Hob. 134; 3 Wils. 126; 1 Chit. TI. 129, 130; 2 Hen. & Munf. 423; 1 Str. 596; 3 East, R. 596. An example of this kind may be found in the case of a person who drives his carriage during a dark night on the wrong side of the road, by which he commits an injury to another. 3 East, R. 593; 1 Campb. R. 497; 2 Cam b. 466; 2 New Rep. 119. Vide Gale and Whatley on Easements, Index, h. t.; 6 T. R. 659; 1 East, R. 106; 4 B. & A; 590; S. C. 6 E. C. L. R. 628; 1 Taunt. 568; 2 Stark. R. 272; 2 Bing. R. 170; 5 Esp. R. 35, 263; 5 B. & C. 550. Whether the incautious conduct of the plaintiff will excuse the negligence of the defendant, see 1 Q. B. 29; 4 P. & D. 642; 3 M. Lyr. & Sc. 9; Fault.
8. When the law imposes a duty on an officer, whether it be by common law or statute, and he neglects to perform it, he may be indicted for such neglect; 1 Salk. R. 380; 6 Mod, R. 96; and in some cases such neglect will amount to a forfeiture of the office. 4 Bl. Com. 140. See Bouv. Inst. Index, h. t.