The relation between municipal corporations and their officers not being one of contract (Alexander v. McKenzie, 2 S. C. 81), the compensation of the latter may be changed from time to time during the continuance of their term of office, by the authority which fixed it. Iowa City v. Foster, 10 Iowa, 189. So, where a public office is created by the authorities of a municipal corporation, an incumbent of the office does not have such an interest in the salary as that the corporation cannot, at its discretion, abolish the office, and by so doing deprive him of his right to tender his services and demand his salary, for the full time for which he was elected. Augusta v. Sweeny, 44 Ga. 463; S. C., 9 Am. Rep. 172. See, also, Madison v. Kelso, 32 Ind. 79; Commonwealth v. Bacon, 6 Serg. & R. 322; Hiestand v. New Orleans, 14 La. Ann. 330. But when the services to be rendered are professional or private, rather than public or official, an employment under an ordinance for a fixed time, at a fixed salary, is held to be a contract, and not subject to be impaired by the corporation. Chase v. Lowell, 7 Gray, 33. And a superintendent of public schools was held to be entitled to recover from a city for his services during the year for which he was elected, although such services were rendered after the repeal of the ordinance requiring the school committee annually to appoint such superintendent. Kimball v. Salem, 111 Mass. 87. So, it is held that when neither the duties nor the compensation of a city solicitor are prescribed, it is his duty, unless otherwise instructed, to perform such services as the interests of the city may require, and he may recover therefor what they are reasonably worth. Kinnie v. City of Waverly, 42 Iowa, 486.

An increase by the municipal authorities of the duties of an officer of the corporation does not imply any obligation to increase his salary (People v. Supervisors, 1 Hill, 362; Covington v. Mayberry, 9 Bush [Ky.], 304; Detroit v. Redfield, 19 Mich. 376; Evans v. Trenton, 4 Zabr. [N. J.] 764); and a promise to pay him an extra fee or sum beyond that fixed by law is not binding. Id.; Debolt v. Cincinnati, 7 Ohio St. 237; Heslep v. Sacramento, 2 Cal. 550. And see Smith v. City of Albany, 61 N. Y. (16 Sick.) 444. But for services performed by request, not part of the duties of his office, and which could have been as appropriately performed by any other person, he may recover a proper remuneration. Evans v. City of Trenton, 4 Zabr. (N. J.) 764; Converse v. United States, 21 How. (U. S.) 463.

And where the duties of an employee of a municipal corporation do not absolutely require his presence every day at the office of another officer of the corporation, the fact that his omissions to be present are numerous, his attendance not being necessary to the faithful discharge of his duties, forms no defense to an action for his salary. Whitney v., Mayor of New York, 7 J. & Sp. (N. Y.) 106.

CHAPTER CI.

NEGLIGENCE.

ARTICLE I.

OF NEGLIGENCE IN GENERAL.

Section 1. Nature and definition. The term "negligence," in its legal acceptation, is nearly synonymous with carelessness. It is defined to be "the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do; or doing something which a prudent and reasonable man would not do." ALDERSON, B., in Blyth v. Birmingham Water Works Co., 11 Exch. 781, 784. See, also, Bizzell v. Booker, 16 Ark. 308; Railroad Company v. Jones, 95 U. S. (5 Otto) 439; Grant v. Moseley, 29 Ala. 302; Mowrey v. Central City Railway, 66 Barb. 43. Or, as more briefly defined, "negligence is a violation of the obligation which enjoins care and caution in what we do." BEARDSLEY, C. J., in Tonawanda R. R. Co. v. Munger, 5 Denio, 255, 266. In negligence, there is an absence of proper attention, care, or skill; but whatever may be the grade of negligence, there is in it no intention to do a wrongful act, or to omit the performance of a duty. One may act in entire good faith and still be guilty of gross negligence. Lincoln v. Buckmaster, 32 Vt. 652. It is strictly non-feasance, not mal-feasance. This is the general idea, and it marks the distinction between negligence and fraud. In the first, there is no positive intention to do a wrongful act; but, in the latter, a wrongful act is ever designed and intended. Negligence, in its various degrees, ranges between pure accident and actual fraud, the latter commencing where negligence ends. Gardner v. Heartt, 3 Denio, 232, 236. But although even gross negligence does not, in construction of law, amount to fraud, yet it is evidence to be left to the jury, from which they may infer fraud, or the want of bona fides. Wilson v. Railroad

Co., 11 Gill & J. (Md.) 58. See, also, Carlon v. Ireland, 5 El. & Bl. 765; Jones v. Smith, 1 Hare, 71; Seybel v. National Currency Bank, 54 N. Y. (9 Sick.) 288; S. C., 13 Am. Rep. 583. And in St.

Louis, etc., R. R. Co. v. Todd, 36 Ill. 409, was gross negligence defined as "amounting to willful injury."

Practically, negligence is the want or absence of the care and attention required by all the circumstances of each particular case. It is not absolute or intrinsic, but is always relative to some circumstances of time, place, or person. Richardson v. Kier, 34 Cal. 63. Thus, in determining what constitutes negligence, consideration should be given to the growth of science, and the improvement in the arts. And it is the duty of those who use hazardous agencies to control them carefully, to adopt every known safeguard, and to avail themselves from time to time of every approved invention to lessen their danger to others. An omission in any of these respects is negligence. Frankford, etc., Turnpike Co. v. Philadelphia, etc., R. R. Co., 54 Penn. St. 345; Cleveland v. Spier, 16 C. B. (N. S.) 399.

But the law is not so absurd as to assume to hold any one responsible upon the ground of negligence, for not doing that which it was practically, under the circumstances, impossible to do. Michigan, etc., R. R. Co. v. Burrows, 33 Mich. 6.

In the civil law, there are three degrees of negligence, described by the terms "slight," "ordinary," and "gross." Story on Bailm., § 18. This classification of negligence has been frequently recognized and applied in courts of common law (See Vaughan v. Menlove, 3 Bing. N. C. 468; Purves v. Laudell, 12 Cl. & Fin. 91; Grill v. General Iron Screw Co., L. R., 1 C. P. 600; Cashill v. Wright, 6 El. & Bl. 891; Edwards v. Lord, 49 Me. 279; Chase v. Maberry, 3 Harr. [Del.] 266; Farish v. Reigle, 11 Gratt. [Va.] 697; Spooner v. Mattoon, 40 Vt. 300); but in other cases, the classification of negligence into degrees has been disapproved of, and it has been gravely doubted whether the terms of distinction could be usefully applied in practice. See Wilson v. Brett, 11 Mees. & W. 113; Hinton v. Dibbin, 2 Q. B. 646, 661; New World v. King, 16 How. (U. S.) 474; Gill v. Middleton, 105 Mass. 477; S. C., 7 Am. Rep. 548; Smith v. New York Central R. R. Co., 24 N. Y. (10 Smith) 222, 241; Western Union Tel. Co. v. Eyser, 2 Col. T. 141. Slight negligence is defined to be the want of great care and diligence (Story on Bailm., § 17); ordinary negligence is the want of ordinary care and diligence (Id.; Wyld v. Pickford, 8 Mees. & W. 443, 461; Pennsylvania R. R. Co. v. Ogier, 35 Penn St. 60; Central R. R. Co. v. Moore, 24 N. J. Law, 824); and gross negligence is the want of even slight care and diligence. Story on Bailm., § 17; Cashill v. Wright, 6 El. & Bl. 891, 899; ante, Vol. 2, 1. See Goodman v. Walker, 30 Ala. 482, 495. Great care or diligence implies the use of greater caution than men of average prudence

exercise with respect to their own affairs (Dreher v. Fitchburg, 22 Wis. 675; Brown v. Lynn, 31 Penn. St. 512); ordinary care or diligence is such as persons of average prudence observe with respect to their own affairs (Heathcock v. Pennington, 11 Ired. [N. C.] Law, 640; Ernst v. Hudson River R. R. Co., 35 N. Y. [8 Tiff.] 9, 37. See Central R. R. Co. v. Moore, 24 N. J. Law, 824; Cayzer v. Taylor, 10 Gray, 274; Toledo, etc., R. R. Co. v. Goddard, 25 Ind. 185; Philadelphia, etc., R. R. Co. v. Kerr, 25 Md. 521); and slight care or diligence is such as is usually exercised by persons below the average prudence of the community in which they live, with respect to their own affairs. See Dorman v. Jenkins, 2 Ad. & El. 256; Duff v. Budd, 3 Brod. & B. 177; Campbell v. Bear River Mining Co., 35 Cal. 679; Schwartz v. Gilmore, 45 Ill. 455; Chase v. New York Central R. R. Co., 24 Barb. 273.

In determining what amounts to any specified degree of care in any particular case, the thing to be cared for, and the dangers to which it is exposed, are the principal considerations. That which would be ordinary care in the security and preservation of wearing apparel, might be gross carelessness in the disposition of gold coins or bank bills. The care must be graduated according to the character of the property, its value, and the convenience of its being made secure, the facility for its being stolen, and the temptations thereto. State v. Meager, 44 Mo. 356; Heathcock v. Pennington, 11 Ired. (N. C.) L. 640; Fletcher v. Boston, etc., R. R. Co., 1 Allen, 9. So, a person driving in a crowded street is bound to the exercise of more care than is required if the street were clear. Garmon v. Bangor, 38 Me. 443. See, also, McGrew v. Stone, 53 Penn. St. 436; Loomis v. Terry, 17 Wend. 496. And in all cases where the safety of human life is in question, a higher degree of care is required, than is exacted in relation to any matter of mere property. See Deane v. Clayton, 7 Taunt. 489; S. C., 2 Marsh. 277; Cayzer v. Taylor, 10 Gray, 274; Fleet v. Hollenkemp, 13 B. Monr. (Ky.) 219; Carroll v. Staten Island R. R. Co., 65 Barb. 32; S. C. affirmed, 58 N. Y. (13 Sick.) 126; 17 Am. Rep. 221.

Whether a party has been negligent is often a mixed question of law and fact. Dolfinger . Fishback, 12 Bush (Ky.), 474; Gagg v. Vetter, 41 Ind. 228; S. C., 13 Am. Rep. 322. And it is laid down as a rule, that when the main fact or facts touching the negligence is sought to be proved by other facts, called circumstantial evidence, the question is always one for the jury. They are to say whether the facts proved justify, by fair reasoning, the finding of the main fact in issue to be true. But when the direct fact in issue is established by undis

R.

puted evidence, and such fact is decisive of the cause, a question of law is raised, and the court should decide it. The jury have no duty to perform. Dascomb v. Buffalo, etc., R. R. Co., 27 Barb. 221; S. C. affirmed, 24 How. 609 n; Van Lien v. Scoville Manuf. Co., 4 Daly, 554; S. C., 14 Abb. (N. S.) 74; Tarwater v. Hannibal, etc., R. Co., 42 Mo. 193; Catawissa, R. R. Co. v. Armstrong, 52 Penn. St. 282; Biles v. Holmes, 11 Ired. (N. C.) L. 16. And see on this point, Glassey v. Hestonville, etc., Railway Co., 57 Penn. St. 172; United States v. Taylor, 5 McLean (C. C.), 242; Toledo, etc., R. R. Co. v. Foster, 43 Ill. 415; Purvis v. Coleman, 1 Bosw. (N. Y.) 321; S. C. affirmed, 21 N. Y. (7 Smith) 111; Georgia R. R., etc., Co. v. Neely, 56 Ga. 540.

ARTICLE II.

OF ACTIONABLE NEGLIGENCE.

Section 1. In general. Negligence, as defined at the beginning of the preceding section, when productive of damage to an individual, is actionable. And the gist of the action is the fault of the defendant, in neglecting to exercise such a reasonable degree of skill, or diligence, or caution, and prudent foresight, as, under the circumstances, might have avoided the injury. Tally v. Ayres, 3 Sneed (Tenn.), 677. So, it is well settled that, for an injury occasioned by want of due care and skill in doing what one has promised to do, an action may be maintained against him in favor of the party relying on such promise and injured by the breach of it, although there was no consideration for the promise. Balfe v. West, 22 Eng. Law & Eq. 506; Benden v. Manning, 2 N. H. 289. Thus, a landlord, whose neglect to use ordinary skill in making repairs on the demised premises causes a personal injury to the tenant, is liable therefor, although his undertaking to make the repairs was gratuitous, and by the tenant's solicitation. Gill v. Middleton, 105 Mass. 477; S. C., 7 Am. Rep. 548.

It is, however, held that actionable negligence exists only when the party, whose negligence occasions the loss, owe a duty, arising from contract or otherwise, to the person sustaining such loss (Kahl v. Love, · 37 N. J. Law, 5); or there must be a disregard o some duty or rule of conduct prescribed beforehand, or arising so manifestly from the Warner v. Railroad Comfacts as to leave no doubt of its existence. pany, 6 Phil. (Penn.) 537. And when the precise act or omission of a defendant is proved, the question whether it is actionable negligence is to be decided by the character of that act or omission, and not by the general character for care and caution which the defendant may