This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
176 That is why it was quite proper, in the German Civil Code, in defining negligence, to omit setting up the type of the "prudent head of a household" or any similar type, and instead to say very generally with a reference to the social side of the matter, "He is negligent who disregards the care required in intercourse between human beings."
177 It is only where such forms are employed that a statute can properly oblige a judge to find a decision in every case and can declare him guilty of a denial of justice when he says: "Mihi non liquet." Thus, notably, in the French Civil Code, section 4: "The judge who refuses to render a decision on the pretext that there is an omission [du silence], ambiguity or incompleteness in the statute, may be prosecuted for the crime of denial of justice [deni de justice].
The course of projection may become changed under the influence of social value judgments. Of this also the application of the concept "negligence" will furnish some good examples.
Section 1315 of the Austrian Civil Code limits the liability of employers for injuries caused by employees in the course of their employment to negligence in selecting their employees. The development of great industrial and transportation enterprises employing mechanical motors, whereby great dangers and constantly recurring accidents were produced, made this rule exceedingly harsh to individuals, and economically harmful for society. As a result, pressure began for devolving the economic consequences of these accidents upon such enterprises, which were better able to bear the burden, by making these enterprises liable to a greater extent, or in some cases by compelling them to insure their employees, and the like. This tendency became manifested in the enactment of statutes regarding the liability of railways, the insurance of employees, as well as in many further projects of reform and in juridical disquisitions.
Now, if one contemplates the decisions of the courts, it is noticeable how they become constantly stricter in insistence on care and diligence, and how they incline more and more to find that there was negligence on the part of the employer. First of all, the principle of liability for negligence only in selecting employees was dropped in the case of corporations, by which the majority of such enterprises are owned. As late as in the year 1866178 an action commenced against a steamship company was dismissed on the ground that there was no negligence on its part because it had shown proper care, as required by law, in the selection of a captain, where it was shown that the master of one of the company's vessels had capsized a boat by passing it too fast, in plain contravention of the regulations. Yet a little later we find the argument, in many cases barely applicable to the facts, that the very circumstance of an employee being negligent proves that the employer was not careful in selecting him, as required by section 1315.179 By and by the whole principle that the employer does not become liable unless he was negligent in selecting the employee is thrown overboard, on the basis of various sections of the code; in its place we become familiar with an argument which is doubtlessly more reasonable and runs like this: a juridical person can act only by agents, therefore it is impossible to distinguish between the acts of a company and those of, its employees; consequently the company must be liable for all acts of its agents, the act of the agent is the act of the company.180
178 GU 2746.
179 So decided as late as 1899 (GU, new series, 766). The keeper of a railway crossing left his post without letting down the bars. The court holds that this act was sufficient to show that the man was incompetent for this employment although he had passed an examination for the post of assistant watchman.
180 Entscheidungen ex 1899, GU (n.F.) 691.
Development did not stop at this point. Especially in the case of electric street railways, which easily provoked comparisons with steam railways, the statutory provisions in force before the recent extension of the railway liability law proved very unsatisfactory. This was kept in mind in each case where a court had to decide what constituted negligence. Thus it came about that many appliances of such street railways, although tested by public authority and erected by experts of the highest quality, such as the arrangement of stopping places, switching devices, and the like, were held to be so defective181 as to amount to "lack of the care required by average skill" in the words of the Austrian Civil Code).182 Occasionally we find even the argument that the maintenance of an establishment causing such great dangers to the public is of itself a case of negligence making its owners liable for all injuries caused thereby. If this argumentation had gained general acceptance the extension of the liability law to street railways would have been unnecessary. Leaving aside the last-named consequence, the course of development sketched above shows how the functioning of the safety-valve concept "negligence" may by means of projection allow social influences to find entrance into the body of the law.
2. The concept "wrongful" is sometimes a concealed element in several other very comprehensive and fundamental concepts, as for instance the concept "good faith," which plays so large a part in the law of possession and the law of acquisition of things, or the concept of "notice."
181 Residents of Vienna probably remember quite generally how, after several distressing accidents, it was held that overhead wires for telephones and electric cars constituted negligence on the part of those maintaining them. Both the State, which ran the telephone, and the company owning the street railway were held to be negligent.
182 Sec. Sec. 1297, 1299.
Not he alone is changeable with bad faith or notice who is actually acquainted with certain circumstances that should prevent his acquisition or possession of some piece of personal or real property, but also he who "ought to know,"183 meaning, as the Civil Code emphasizes, wrongfully fails to know. Wherever either of these alternatives enters into the concepts above mentioned, the coefficient of uncertainty or varying possibility of the concept "wrongfulness" enters into them also; and this is very often the case because the two alternatives are usually treated alike.184