Degrees of negligence such as slight, ordinary, and gross, are not recognized, and trial courts in their instructions should not attempt to make such distinctions.
Plaintiff lender brought an action against the borrower to recover damages for the failure of the borrower to return a cart. Judgment was entered in favor of the lender and the borrower filed a writ of error based on the decision. The borrower contended that it was unable to return the cart because the cart had been destroyed in a fire that burned the borrower's freight depot. The lender alleged that such fire was caused by the negligence of the borrower. In some of the instructions given there appeared to be a recognition by the court of a distinction with respect to different degrees of negligence. On appeal, the court found that the evidence was insufficient to show the borrower's negligence and to sustain the verdict.
Were the jury instructions prejudicial to the defendant?
The court found that the testimony from the lender's witnesses regarding the cause of the fire at the depot was conflicting. The court also found that the jury instructions regarding the testimony were unduly prejudicial to the borrower, particularly the recognition by the court of a distinction with respect to different degrees of negligence.. This is accounted for by the fact that defendant in some of its requests committed a like error. While defendant is not for that reason in a position to complain, and, in fact, does not compalin, of the distinction thus made by the court, we deem it appropriate to say that the doctrine is firmly established in this jurisdiction that degrees of negligence such as slight, ordinary, and gross, are not recognized, and trial courts in their instructions should not attempt to make such distinctions.