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The Degrees of Diligence and Negligence


THE DEGREES OF DILIGENCE AND NEGLIGENCE. In the last section we used the terms "slight diligence" and "gross negligence," hence it becomes necessary in this con nection to explain briefly the degree or gradations of diligence and negligence.

These terms, which are opposites of each other, are commonly considered in law as being divisible into three degrees each; a degree in the one case opposing a like degree in the other. Thus, ordinary diligence op poses ordinary negligence; slight diligence opposes ex traordinary or gross negligence, and extraordinary dil igence opposes slight negligence.

Diligence, or due care, is the measure of the bailee's obligation in the absence of express contract enlarging or diminishing his responsibility. Just what consti tutes due care is hard to determine. It has been de fined to be the exercise of such care and diligence as the circumstances demand,—which is practically no definition at all. But by a division of diligence into three degrees we may approximate the due care re quired of any particular class of bailees.

Slight diligence is such as even careless men use in dealing with their own concerns. It is the lowest degree of diligence which will excuse the bailee, and is usually the test of the gratuitous bailee's responsibility. The failure to use even slight diligence constitutes gross negligence on the part of the bailee.

Ordinary diligence is such diligence as men of com mon and ordinary prudence exercise in respect to their own affairs. It is a higher degree than slight diligence, and failure to exercise this degree of diligence consti tutes ordinary negligence on the part of the bailee. It is generally the test of responsibility in mutual benefit bailments, or bailments for reward.

Extraordinary diligence is the highest degree of dili gence, and is said to be that which very prudent men use with respect to their own concerns. Failure to use this degree constitutes slight diligence on the part of the bailee. Extraordinary diligence is required of bailees who get the sole benefit of the bailment, also of certain special bailees upon whom the law imposes greater diligence because of the nature of their calling. (Hulett v. Swift, 33 N. Y. 571.) Negligence is the absence of diligence, or the omis sion of any duty. In Steamboat New World v. King, 16 How. 471, the rule distinguishing between slight, ordinary and gross negligence is criticised on the ground that any negligence on the part of the bailee, resulting in damage to the bailor, ought to charge the former with the liability. Negligence of any degree being considered a legal fault. And, on the other hand, if one has not committed a legal fault, he is not negli gent. (Beach on Contrib. Neg., Sec. 18.)

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