It is equally clear that the
featureless generality, that the defendant was bound to use such
care as a prudent man would do under the circumstances, ought to
be continually giving place to the specific one, that he was
bound to use this or that precaution under these or those
circumstances. The standard which the defendant was bound to come
up to was a standard of specific acts or omissions, with
reference to the specific circumstances in which he found
himself. If in the whole department of [112] unintentional wrongs
the courts arrived at no further utterance than the question of
negligence, and left every case, without rudder or compass, to
the jury, they would simply confess their inability to state a
very large part of the law which they required the defendant to
know, and would assert, by implication, that nothing could be
learned by experience. But neither courts nor legislatures have
ever stopped at that point.
From the time of Alfred to the present day, statutes and
decisions have busied themselves with defining the precautions to
be taken in certain familiar cases; that is, with substituting
for the vague test of the care exercised by a prudent man, a
precise one of specific acts or omissions. The fundamental
thought is still the same, that the way prescribed is that in
which prudent men are in the habit of acting, or else is one laid
down for cases where prudent men might otherwise be in doubt.
Pages:
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154