'WauKeb, J.,
after stating tbe case: It was properly conceded that if tbe defendant, by bis negligence, contributed substantially and proximately to tbe destruction of tbe dam at Toxaway Lake, be would be liable in damages to tbe plaintiffs, but tbe defendant contends that be did not do so, and that tbe damage to plaintiffs was caused by tbe unprecedented flood of that season, which could not be foreseen or restricted by him, and to which tbe dam succumbed, without any fault on bis part.
There are many exceptions in this case, but it will not be necessary for us to consider more than two or three of them, as tbe others may not be presented hereafter.
It is our opinion tbat there was error in giving tbe instruction requested by tbe defendant, and indicated above as No. 11, and especially wben, at tbe plaintiff’s request, tbe- court gave another instruction, No. 15, which is apparently in conflict with it, thereby leaving the jury in doubt as to the law applicable to the case. The seeming likeness of the two may have misled the court into the error, but when they are carefully examined and compared it will be found that there is an essential difference, which cannot be reconciled. Taking up first the defendant’s prayer, the question was not whether the negligence of the defendant alone, or of itself, and without the aid of the rainstorm, was insufficient to have caused the break in the dam and the resultant damage to the plaintiff, but whether it contributed, as a factor, in producing the damage. The principle, as applicable to this case, is thus stated in Shearman & Redfield on Negligence, vol. 1 (Street’s Ed.), p. 16, .sec. 39 : “It is universally agreed that if the damage' is caused by the concurring force of the defendant’s negligence and some other cause for which he is not responsible, including the ‘act of God’ or superior human force directly intervening, the defendant is nevertheless responsible, if his negligence is.one of the proximate causes of the damage, within the definition already given. It is also agreed that if the negligence of the defendant concurs with the other cause of the injury, in point of time and place, or otherwise so directly contributes to the plaintiff’s damage that it is reasonably certain that the other cause alone would not have sufficed to produce it, the defendant is liable, notwithstanding he may not have anticipated or been bound to anticipate the interference of the superior force which, concurring with his own negligence, produced the damage.” We adopted and applied this well settled rule in
Stone v. Texas Co., Fox v. Same,
and
Newton v. Same,
all reported in 180 N. C., at pp. 543-568 (explosion cases), citing
Rwy. Co. v. Cummings,
106 U. S., 700 (27 L. Ed., 266);
Ridge v. R. R.,
167 N. C., 510. Several illustrations of this doctrine are given in
Stone’s case,
180 N. C., at pp: 564-5, where we further held that where there are two causes cooperating to produce an injury, one of which is attributable to defendant’s negligence, the latter becomes liable, if together they are the proximate cause of the same, or if defendant’s negligence is such proximate cause, citing
Ridge v. R. R., supra,
and
Steele v. Grant,
166 N. C., 635.
Chief Justice Waite
said in the
Cummings case, supra,
that if the negligence of the defendant contributed to the injury, it must necessarily be an immediate cause of the accident, and it is no defense that another was likewise guilty of wrong. It appeared in
Dickinson v. Boyle,
17 Pick. (Mass.), 78, that the defendant had wrongfully placed a dam across a stream on plaintiff’s land, and allowed it to remain there; being swept away by a freshet in the stream, the rush of water damaged plain
tiff’s property, and it was Held that defendant was liable. The wrong there, it is true, consisted in the placing the dam on the plaintiff’s land, while the wrong alleged here is in negligently building and maintaining a dam on defendant’s own land, but the difference in the particular nature of the wrong does not, in law, distinguish the two cases, but they will not, of course, be alike unless the jury find from the evidence that defendant was guilty of negligence, as that is the basic fact upon which the plaintiff’s case must rest. If there was no negligence, it follows that there was no wrong, or if there was negligence, but it had nothing to do with the destruction of the dam, which,. on the contrary, was caused by an unprecedented rainstorm, or by some other cause for which the defendant was in no degree responsible, he would not he liable. He is fixed with liability when, by his own negligence or in conjunction with that of another, he has brought himself within the condemnation of a favorite maxim of the law, which enjoins that a man should so use his own property as not to injure that of another. Blackstone, 306.
Counsel discussed before us at some length the difference between ordinary care, the highest degree of care and gross negligence, but we deem it unnecessary to draw any distinction between them. It is all but ordinary care, which means that degree of care which a man of ordinary prudence would use in the same or similar circumstances. It must be that more care is required as the danger increases, and the degree of care in the particular case must be proportioned to the danger. We cannot do better than refer to the case of
Milwaukee R. Co. v. Arms,
91 U. S., 489 (23 L. Ed., 374), where
Justice Davis
discusses this question : “If the law furnishes no definition of the terms ‘gross negligence’ or ‘ordinary negligence’ which can be applied in practice, but'leaves it to the jury to determine in each case what the duty was, and what omissions amount to a breach of it, it would seem that imperfect and confessedly unsuccessful attempts to define that duty had better be abandoned. Some of the highest English courts have come to the conclusion that there is no intelligible distinction between ordinary and gross negligence. Redf. Car., p. 376.
Lord Cranworth,
in
Wilson v. Brett,
11 M. & W., 113, said that gross negligence is ordinary negligence with a vituperative epithet; and the Exchequer Chamber took the same view of the subject.
Beal v. R. Co.,
3 H. & C., 337;
Grill v. Gen. Iron Screw Collier Co.,
3 R., 1 C. P., 1865-66, p. 600, were heard in the Common Pleas on appeal. One of the points raised was the supposed misdirection of the
Chief Justice
who tried the case, because he had made no distinction between gross and ordinary negligence.
Justice Willes,
in deciding the point, after stating his agreement with the dictum of
Lord Granworth,
said: ‘Confusion has arisen from regarding negligence as a positive instead of a negative word.’ It is really the absence of
such care as it was the duty of the defendant to use. Gross is a word of description, and not of definition; and it would have been only introducing a source of confusion to use the expression ‘gross negligence’ instead of the equivalent — a want of due care and skill in navigating the vessel — which, was again and again used by the
Lord Chief Justice
in his summing up. ‘Gross negligence’ is a relative term.
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'WauKeb, J.,
after stating tbe case: It was properly conceded that if tbe defendant, by bis negligence, contributed substantially and proximately to tbe destruction of tbe dam at Toxaway Lake, be would be liable in damages to tbe plaintiffs, but tbe defendant contends that be did not do so, and that tbe damage to plaintiffs was caused by tbe unprecedented flood of that season, which could not be foreseen or restricted by him, and to which tbe dam succumbed, without any fault on bis part.
There are many exceptions in this case, but it will not be necessary for us to consider more than two or three of them, as tbe others may not be presented hereafter.
It is our opinion tbat there was error in giving tbe instruction requested by tbe defendant, and indicated above as No. 11, and especially wben, at tbe plaintiff’s request, tbe- court gave another instruction, No. 15, which is apparently in conflict with it, thereby leaving the jury in doubt as to the law applicable to the case. The seeming likeness of the two may have misled the court into the error, but when they are carefully examined and compared it will be found that there is an essential difference, which cannot be reconciled. Taking up first the defendant’s prayer, the question was not whether the negligence of the defendant alone, or of itself, and without the aid of the rainstorm, was insufficient to have caused the break in the dam and the resultant damage to the plaintiff, but whether it contributed, as a factor, in producing the damage. The principle, as applicable to this case, is thus stated in Shearman & Redfield on Negligence, vol. 1 (Street’s Ed.), p. 16, .sec. 39 : “It is universally agreed that if the damage' is caused by the concurring force of the defendant’s negligence and some other cause for which he is not responsible, including the ‘act of God’ or superior human force directly intervening, the defendant is nevertheless responsible, if his negligence is.one of the proximate causes of the damage, within the definition already given. It is also agreed that if the negligence of the defendant concurs with the other cause of the injury, in point of time and place, or otherwise so directly contributes to the plaintiff’s damage that it is reasonably certain that the other cause alone would not have sufficed to produce it, the defendant is liable, notwithstanding he may not have anticipated or been bound to anticipate the interference of the superior force which, concurring with his own negligence, produced the damage.” We adopted and applied this well settled rule in
Stone v. Texas Co., Fox v. Same,
and
Newton v. Same,
all reported in 180 N. C., at pp. 543-568 (explosion cases), citing
Rwy. Co. v. Cummings,
106 U. S., 700 (27 L. Ed., 266);
Ridge v. R. R.,
167 N. C., 510. Several illustrations of this doctrine are given in
Stone’s case,
180 N. C., at pp: 564-5, where we further held that where there are two causes cooperating to produce an injury, one of which is attributable to defendant’s negligence, the latter becomes liable, if together they are the proximate cause of the same, or if defendant’s negligence is such proximate cause, citing
Ridge v. R. R., supra,
and
Steele v. Grant,
166 N. C., 635.
Chief Justice Waite
said in the
Cummings case, supra,
that if the negligence of the defendant contributed to the injury, it must necessarily be an immediate cause of the accident, and it is no defense that another was likewise guilty of wrong. It appeared in
Dickinson v. Boyle,
17 Pick. (Mass.), 78, that the defendant had wrongfully placed a dam across a stream on plaintiff’s land, and allowed it to remain there; being swept away by a freshet in the stream, the rush of water damaged plain
tiff’s property, and it was Held that defendant was liable. The wrong there, it is true, consisted in the placing the dam on the plaintiff’s land, while the wrong alleged here is in negligently building and maintaining a dam on defendant’s own land, but the difference in the particular nature of the wrong does not, in law, distinguish the two cases, but they will not, of course, be alike unless the jury find from the evidence that defendant was guilty of negligence, as that is the basic fact upon which the plaintiff’s case must rest. If there was no negligence, it follows that there was no wrong, or if there was negligence, but it had nothing to do with the destruction of the dam, which,. on the contrary, was caused by an unprecedented rainstorm, or by some other cause for which the defendant was in no degree responsible, he would not he liable. He is fixed with liability when, by his own negligence or in conjunction with that of another, he has brought himself within the condemnation of a favorite maxim of the law, which enjoins that a man should so use his own property as not to injure that of another. Blackstone, 306.
Counsel discussed before us at some length the difference between ordinary care, the highest degree of care and gross negligence, but we deem it unnecessary to draw any distinction between them. It is all but ordinary care, which means that degree of care which a man of ordinary prudence would use in the same or similar circumstances. It must be that more care is required as the danger increases, and the degree of care in the particular case must be proportioned to the danger. We cannot do better than refer to the case of
Milwaukee R. Co. v. Arms,
91 U. S., 489 (23 L. Ed., 374), where
Justice Davis
discusses this question : “If the law furnishes no definition of the terms ‘gross negligence’ or ‘ordinary negligence’ which can be applied in practice, but'leaves it to the jury to determine in each case what the duty was, and what omissions amount to a breach of it, it would seem that imperfect and confessedly unsuccessful attempts to define that duty had better be abandoned. Some of the highest English courts have come to the conclusion that there is no intelligible distinction between ordinary and gross negligence. Redf. Car., p. 376.
Lord Cranworth,
in
Wilson v. Brett,
11 M. & W., 113, said that gross negligence is ordinary negligence with a vituperative epithet; and the Exchequer Chamber took the same view of the subject.
Beal v. R. Co.,
3 H. & C., 337;
Grill v. Gen. Iron Screw Collier Co.,
3 R., 1 C. P., 1865-66, p. 600, were heard in the Common Pleas on appeal. One of the points raised was the supposed misdirection of the
Chief Justice
who tried the case, because he had made no distinction between gross and ordinary negligence.
Justice Willes,
in deciding the point, after stating his agreement with the dictum of
Lord Granworth,
said: ‘Confusion has arisen from regarding negligence as a positive instead of a negative word.’ It is really the absence of
such care as it was the duty of the defendant to use. Gross is a word of description, and not of definition; and it would have been only introducing a source of confusion to use the expression ‘gross negligence’ instead of the equivalent — a want of due care and skill in navigating the vessel — which, was again and again used by the
Lord Chief Justice
in his summing up. ‘Gross negligence’ is a relative term. It is doubtless to be understood as meaning a greater want of care than is implied by the term ‘ordinary negligence’; but, after all, it means the absence of the care that was necessary under the circumstances.”
No better standard has yet been devised than the care of the “ordinarily prudent man.”
There were numerous questions argued before us, more or less involved in the controversy. They may not arise again, or, if they do, not in the same way, nor with respect to the same facts, and we, therefore, pretermit a discussion of them and will rest content with those we have considered, with one exception.
There is a question of evidence in the case. The court allowed the plaintiff to introduce certain- reports as to the state of the weather at other places than Toxaway. These were not relevant to the issues which related only to the rainfalls at Toxaway Lake or in its vicinity or within its watershed, as tending to show how that stream was affected thereby. It could make no difference how many, or how few, rains fell at other places if they had no effect on Toxaway River or Lake, nor do we see how the engineer in constructing the dam could rely with any degree of certainty on how much or how often rain would fall at Toxa-way by estimates based upon rains in other sections of the State. This, we think, should be excluded, unless its relevancy hereafter more clearly appears.
For the reasons stated another trial must be ordered.
New trial.