Osborne v. McMasters

40 Minn. 103, 41 N.W. 543 (1889)



Negligence is the breach of legal duty. It is immaterial whether the duty is one imposed by the rule of common law requiring the exercise of ordinary care not to injure another, or is imposed by a statute designed for the protection of others. In either case the failure to perform the duty constitutes negligence, and renders the party liable for injuries resulting from it. The only difference is that in the one case the measure of legal duty is to be determined upon common-law principles, while in the other the statute fixes it, so that the violation of the statute constitutes conclusive evidence of negligence, or, in other words, negligence per se. The action in the latter case is not a statutory one, nor does the statute give the right of action in any other sense except that it makes an act negligent which otherwise might not be such, or at least only evidence of negligence. All that the statute does is to establish a fixed standard by which the fact of negligence may be determined. The gist of the action is still negligence, or the non-performance of a legal duty to the person injured.


A clerk in the drug store, in the course of employment, sold to the administrator's intestate a deadly poison without labeling it "poison," as required by statute. The intestate ingested the poison and died. A jury entered a verdict in favor of the administrator in his negligence action against the drug store. On appeal, the defendant contends that no liability existed at common law for selling poison without labelling it.


Whether the mere failure to comply with the statutory requirement of labelling a deadly poisons amounts to negligence.




Where a statute or municipal ordinance imposed upon any person a specific duty for the protection or benefit of others, if he neglected to perform that duty he was liable to those for whose protection or benefit it was imposed for any injuries of the character which the statute or ordinance was designed to prevent, and which were proximately produced by such neglect. Regardless of whether a duty was imposed by a rule of common law or by a statute, the breach of such duty resulted in negligence. The court also held that the doctrine of agency applied and that the master was civilly liable for the negligence of his servant committed in the course of employment, and resulting in injuries to third persons.

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