Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
consider was, whether the fire had been occasioned by gross negligence on the part of the
defendant; adding, that he was bound to proceed with such reasonable caution as a prudent man
would have exercised under such circumstances.
A verdict having been found for the plaintiff, a rule nisi for a new trial was obtained, * on
the ground that the jury should have been directed to consider, not whether the defendant had
been guilty of a gross negligence with reference to the standard of ordinary prudence, a standard
too uncertain to afford any criterion, but whether he had acted bond fide to the best of his
judgment; if he had, he ought not to be responsible for the misfortune of not possessing the
highest order of intelligence. The action under such circumstances was of the first impression.
Talfourd, Serjt., and Whately, showed cause [for the plaintiff]. . . . [T]here were no means
of estimating the defendant’s negligence, except by taking as a standard the conduct of a man of
ordinary prudence: that has been the rule always laid down, and there is no other that would not
be open to much greater uncertainties.
R. V. RICHARDS, in support of the rule [for the defendant]. First, there was no duty
imposed on the defendant, as there is on carriers or other bailees, under an implied contract, to be
responsible for the exercise of any given degree of prudence: the defendant had a right to place his
stack as near to the extremity of his own land as he pleased . . . . [U]nder that right, and subject to
no contract, he can only be called on to act bona fide to the best of his judgment; if he has done
that, it is a contradiction in terms, to inquire whether or not he has been guilty of gross negligence.
At all events what would have been gross negligence ought to be estimated by the faculties of the
individual, and not by those of other men. The measure of prudence varies so with the varying
faculties of men, that it is impossible to say what is gross negligence with reference to the
standard of what is called ordinary prudence.
TINDAL, C. J. I agree that this is a case prime impressionis; but I feel no difficulty in
applying to it the principles of law as laid down in other cases of a similar kind. Undoubtedly this
is not a case of contract, such as a bailment or the like, where the bailee is responsible in
consequence of the remuneration he is to receive: but there is a rule of law which says you must
so enjoy your own property as not to injure that of another; and according to that rule the
defendant is liable for the consequence of his own neglect: and though the defendant did not
himself light the fire, yet mediately he is as much the cause of it as if he had himself put a candle
to the rick; for it is well known that hay will ferment and take fire if it be not carefully stacked. . .
.
It is contended, however, that . . . the question of negligence was so mixed up with
reference to what would be the conduct of a man of ordinary prudence that the jury might have
thought the latter the rule by which they were to decide; that such a rule would be too uncertain to
act upon; and that the question ought to have been whether the defendant had acted honestly and
bona fide to the best of his own judgment. That, however, would leave so vague a line as to afford
no rule at all, the degree of judgment belonging to each individual being infinitely various: and
though it has been urged that the care which a prudent man would take, is not an intelligible
proposition as a rule of law, yet such has always been the rule adopted in cases of bailment . . . .
*
[Recall from Chapter 3 that a “rule nisi” was essentially a device for obtaining appellate review; it was an order
requiring a new trial unless the other side could show cause why the original decision should be upheld—Ed.]
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