Just, proper, andsufficient care, so far as the circumstances demand it; ths absence of negligence. Thisterm, as usually understood in cases where the gist of the action is the defendant’snegligence, implies not only that a party has not been negligent or careless, but that hehas been guilty of no violation of law in relation to the subject- matter or transactionwhich constitutes the cause of action. Evidence that a party is guilty of a violation oflaw supports the issue of a want of proper care ; nor can it be doubted that in theseand similar actions the averment in the declaration of the use of due care and thedenial of it in the answer, properly and distinctly put in issue the legality of the conductof the party as contributing to the accident or injury which forms the groundwork of theaction.. No specific averment of the particular unlawful act which caused or contributedto produce the result complained of should, in such cases, be deemed necessary. SeeItyan v. Bristol. 63 Conn. 26. 27 Atl. 309; Paden v. Van Blarcom. 100 Mo. App. 185. 74S. W. 124; Joyner v. Railwav Co., 20 S. C. 49. 1 S. E. 52: Nicholas v. Peck, 21 R. I. 404.43 Atl. 1038; Railroad Co. v. Yorty. 158 111. 321. 42 N. E. 64: Schmidt v. Sinnott. 103111. 105; Butterfield v. Western R. Corp., 10 Allen (Mass.) 532, 87 Am. Dec. 078; Jonesv. An- dover, 10 Allen (Mass.) 20.
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