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Seymour D. (Seymour Dwight) Thompson.

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Gaynor v. Old Colony &c. R. Co., 100
Mass. 208, 212; McGrath v. Hudson
River R. Co., 32 Barb. (N. Y.) 144; s. c.
19 How. Pr. (N. Y.) 211; Bridges v.
North London R. Co., L. R. 7 H. L. 213 ;
Beers v. Housatonic R. Co., 19 Conn.
5GG; Vinton v. Schwab, 32 Vt. (512;
Pennsylvania Canal Co. v. Bentlcy, GG
Pa. St. 30,34; Wyatt??. Citizens' R.Co.,
55 Mo. 485 ; Norton v. Ittner, 5G ilo. 351 ;
Stoddard v. St. Louis &c. R. Co , 05
Mo. 514; Jenkins v. Little Miami R.
Co., 2 Disney (Oh.), 49; McLain v. Van
Zaudt, 7 Jones & Sp. (N. Y.) 847.

' Conover v. Middletown, 42 N. J.
L. 382. «'Tiie true position is tliis:
Negligence (with tlie exception iiere-
after to be noted; is always a logical
inference, to be drawn by the jury
from all tiic cintimstaucesof tliccas'.



under the instructions of the court
In all cases in Avhich the evidence is
such as not to justify the inference of
negligence, so that a verdict of negli-
gence would he set aside by the court,,
then it is the duty of the court to in-
struct the jury to negative negligence.
In all other cases, the question is for
the jury, subject to such advice as
may be given by the court as to the
force of the inferences. The only ex-
ception to this rule is that elsewhere
discussed, -where a statute declares
that a party doing or omitting certain
things is to be treated as negligent.
In such cases all that the jury has to
decide is whether the thing in ques-
tion was done or omitted. If so,
negligencp is juridically imputed, and
this must be declared by the court."
Whart. Neg.. § 420. This statement
of doctrine has been quoted with ap-
proval l)y the Supreme Court of Mis-
souri (Bell V. Hannibal &c. R. Co., 72
Mo. 50, 68), — overlooking the fact
tliat in that State the judge does not
give " advice " to the jury " as to the
force of the inferences."



Tit. V, Ch. LIV.]



NEC.LKiENCE.



1209



negligence should be submitted to the jury.^ Thus, questions of
contributory negligence in cases of persons run over in the high-
way,'^ of the teams of travelers colliding upon the highway,'^ of
injuries to travelers from defects in the highway ^^ whether in the
day or the night time,^ including the question of the traveler's
rate of speed^' at the time of the injury, of the competency of
his driver,^ and whether the traveler was making a reasonable or



1 Gayuor v. Old Colony &c. R. Co.,
100 Muss. 208; Patterson v. Wallace. 1
Macq. II. L. Cas 748; Johnson v. Hud-
son &c. R. Co., 20 N. Y. G5; Philadelphia
&c. R. Co. V. Spearen, 47 Pa. St. 300;
Mangam v. Brooklyn &c. R. Co., 38 N.
Y. 455; West, Chester &c. R. Co. v.
McEl-wee, 07 Pa. St. 311; Seabrook u.
Hecker, 2 Robt. (N. Y.)291 ; Haycroftu.
Lake Shore &c. R. Co., 64 N. Y. 636.

- Williams v. Grealy, 112 Mass.
79; Quirk v. Holt, 9i) Mass. 164; Fer-
nandez V. Sacramento City R. R., 4
Cent. L. J. 82; Belton v. Baxter, 58 N.
Y. 411; s. c. 54 N. Y. 245; Myers v.
Dixon, 45 How. Pr. (N. Y.) 48; Baxter
V. Second Avenue R. R. Co., 3 Robt.
(N. Y.) 510; Williams v. O'Keefe, 9
Bosw. (N. Y.) 536; Pendril v. Second
Avenue R. Co., 43 How. Pr. (N. Y.)
399; 2 Jones & Sp. (N. Y.) 481; John-
son V. Hudson River R. Co., 20 N. Y.

3 Welling V. Judge, 40 Barb, (N. Y.)
193; Larrabee v. Sewall, 66 Me. 376;
Campbell v. Kearney, 45 How. Pr, (N.
Y.) 87; Smith v. Clark, 3 Lans. (N. Y.)
208; Park t?. O'Brien, 23 Conn. 347;
Griggs V. Fleckenstien, 14 Minn. 81;
post, §§ 1822-1824.

■* Woods V, Boston, 121 Mass. 337;
Barstow v. Berlin, 34 Wis. 357; Weis-
euberg v. Appleton, 26 Wis. 56; Dris-
coll V. New York, 11 Hun (N, Y.), 101
(with which compare Oilman v. Deer-
field, 15 Gray ("Mass.), 577); Cremer
V. Portland, 36 Wis. 92; Spofford v.



Harlow, 3 Allen (Mass.), 176; Sheehy
V. Burger, 62 N. Y. 5.58; Cox v. West-
chester Turnpike Road, 33 Barb. (N.Y.)
414; Conroy v. Twenty-third Street R.
Co., 52 How. Pr. (N. Y.) 39; Gillespie
V. Xewberg, 54 N. Y. 408; post, § 1749
et seq.

5 Maloy V. New York &c. R. Co., 58
Barb. (N.Y.) 182; Swift u. Newbury, 36
Vt. 355; Rector v. Pierce, 3 Thomp.
& Cook (N. Y.), 416; Durant v.
Palmer, 29 N. J. L. 544. 548; Wright
V. Saunders, 58 Barb. (N. Y.) 214; s. c.
affirmed, 3 Keyes (N. Y.), 323; Vale v.
Bliss, 50 Barb. (N. Y.) 358; Bateman v.
Ruth, 3 Daly (N. Y.), 378; Barton v.
Springfield, 110 Mass 131; Perkins v.
Fond du Lac, 34 Wis. 435 ; Stier v. Oska-
loosa, 41 la. 353.

6 Elgin V. Renwick, 86 111. 498;
Oakland R. Co. v. Fielding, 48 Pa. St.
320; Palmer w. Portsmouth, 43 N. H.
265; Bly v. Haverhill, 110 Ma.ss. 520;
Stevens v. Boxford, 10 Allen (Mass.),
25; Rigby v. Hewitt, 5 Exch. 240;
Damon v. Scituate, 119 Mass. 66 ; Baker
V. Portland, 58 Me. 199; Whitney v.
Cumberland, 64 Me. 541 ; Reed v. Deer-
field, 8 Allen (Mass.), 522. But see
Heland v. Lowell, 3 Allen (Mass.), 407.

' Cobb V. Staudish, 94 Me. 198;
Bigelow V. Rutland, 4 Cush. (Mass.)
247; Blood v. Tyuesborough, 103 Mass.
509; Babson v. Rockport, 101 Mass.
93; Brousou v. Southbury, 37 Conn.
199.



1210



PKOVINC1-: OF COURT AND JURY. [2 Thom[). Tr.,



proper use of the highway at the tiiiie,^ even where the jiarticu-
hir use of the highway was prohibited by hiw ; ^ questions of
nealigent injuries to persons through noxious agents which
have been left exposed,^ through the use of other dangerous
agents,* through the exposure of person and property in situa-
tions only slightly dangerous; ^ or, in the case of injuries to em-
ployes tlirough the use of defective machinery ^' or through the



1 Brittou V. Cunuinctou, 107 Mass.
347; Babson v. Kockport, 101 Mass.
il3; Bi^elow v. Reed, 51 Me. 325;
Clevelaud v. Spier, 16 C. B. (x. s.)
3'.t9; Iluut V. Salem, 121 Mass. 294;
K)-ei"sou V. Abingtou, 102 Mass. 526;
Gregory v. Adams, 14 Gray (Mass.),
242.

2 Davies v. Mann, 10 INIees. & W.
546; .s. c. 2 Thomp. Neg. 1105; Steele
V. Burkhardt, 104 Mass. 59; Kearus
r. Suowdeu, 104 Mass. 63, note;
Greenwood v. Callahan, 111 Mass. 298;
Streettr. Laumier, 34 Mo. 469; Griggs
r. Fleckenstein, 14 Minn. 81; Albert v.
Bleeker Street R. Co., 2 Daly (X. Y.),
389; Neanow v. Uttech, 46 Wis. 581;
Klipper V. Coffey, 44 Md. 117; Spof-
ford r. Harlow, 3 Allen (Mass.), 176;
s. c. 1 Thomp. Neg. 383; Butterfleld v.
Forrester, 11 Ea.st, 60; s. c. 2 Thomp.
Neg. 1104; Welch v. Wesson, 6 Gray
(Mass.). 505; .«. c. 2 Thomp. Neg. 1077;
Rigby V. Hewitt, 5 E.xch. 240; Baker
V. Portland, 58 Me. 199, 205. In some
of the New England courts this prin-
ciple has been held not to apply where
the traveler was violating the law by
traveling on Sauday — a conclusion
which is founded not in judicial sense,
but in religious bigotry. Basworth v.
Swauscy, 10 Met. (Mass.) 363; Jones
V. Andover, 10 Allen (Mass.), 18; Con-
nolly V. Boston, 117 Mass. 64; Lyons
T. Desotelle, 124 Mass. 387; Smith v.
Boston &c. R. R , 120 Mass. 490;
Hinckley v. Penoljscot, 42 Me. 89;
Jukubou V. Irasburgli, 4 7 Vt. 2S;



Hauiilton v. Boston, 14 Allen (Mass.),
475. Contra, Sutton v. Wauwatosa,
29 AYis. 21; Greer, ,T.,inrhiladelphia
&c. R. Co. V. Philadelphia &c. Tow
Boat Co., 23 How. (U. S.) 209, 218.

3 McKee v. Bidwell, 74 Pa. St. 218;
McXamara v. Northern Pacific R. Co ,
50 Cal. 581 ; Clark v. Chambers, 3 Q.

B. Di». 327; s. c. 7 Cent. L. J. 11: 17
Alb. L. J. 505.

^ Hanlon v. Ingram, 3 la. 81;
Frankford &c. Turnpike Co. v. Phila-
delphia &c. R. Co., 54 Pa. St. 345:
Lackawanna &c. R. Co. v. Doak, 52 Pa.
St. 379; McCully r. Clarke, 40 Pa. St.
399; Crist v. Erie R. Co.. 1 Thomp. &

C. (N. Y.) 433. Proper equipments be-
ing shown, however, by uncontradicted
testimony, for controlling the escape
of Are, no question remains for the
jury. Read v. Morse, 34 Wis. 315;
Spauldiug V. Chicago &c. R. Co., 33
AVis. 589.

5 Ackhart v. Lansing, 48 How. Pr.
374; Patrick v. Pote, 117 Mass. 297;
Clayards v. Dethick, 12 Q. B. 439.

6 Norton v. Ittuer, 5G M0..351 ; Cum-
berland &c. R. Co. V. State, u.se of
llogan, 45 Md. 229; Cumberland &c.
R. Co. V. State, use of Fazenbaker, 37
Md. 156; Haydeu v. Smithville Man.
Co., 29 Conn. 548; Lake Shore &c. R.
Co. V. Fitzpatrick,31 Oh. St. 479: Fort
v. Whipple, 11 Hun (N.Y.),586 ; Dor.sey
V. Phillips &c. Co., 42 Wis. 583. If the
defect is glaring, and the employer
continues in the use of the instrument
or machinery, he will be held to be



Tit. V, CIj. LIV.]



XEGLIGENCE.



1211



employment of inco77ipe(ent fellow tooi-kmen,^ including in such
cases the effect of orders given to subordinates; ' — all these
and many other cases are ordinarily to be submitled to Uie jury.

§ 1664. When a question for the jury: Where the facts
are Controverted. — The question of negligence is, then, a ques-
tion of fact for the jury where the facts which, if true, would
constitute "evidence of negligence," are controverted.^ To illus-
trate: In Maryland, if it appear that the plaintiff was injured in
consequence of having voluntarily Y)\xi his arm out of the window
of a railway coach, he cannot recover. Yet if there is a conflict
of testimony as to how his arm came to be thus exposed, the
case must go to the jury }

§ 1665. AVhere Fair-minded Men might draw Different In-
ferences from Uncoutro verted Facts. — The case must also go
to the jury where, although the facts are not controverted, fair-
minded men might differ as to whether the inference of negli-
iience should be drawn from them.^



guilty of uealigeiice as a matter of
laTi'. Patterson v. Pittsburgh &c. 11.
Co., 7G Pa. St. 3S1); Couroy v. Vul-
cau Iron "Works, 62 Mo. 35: Melian v.
Syracuse &c M. Co., 73 N. Y. 585.
Seeppsf, §§ 1738, 1739.

1 Joch V. Dankwardt, 85 111. 381;
post, § 1737.

- Locke V. Sioux &c. R. Co.,4G la.
109.

3 Saltoustall v. Stocktou, 1 Taney's
Dec. 11; Pittsburgh &c. R. Co. v. An-
drews, 39 Md. 329; Chicago City R.
Co. V. Young, 62 111. 238; Bernhardt
V. Rensselaer &c. R. Co. 32 Barb. (N.
Y.) 166.

* Pittsburgh &c. R. Co. v. Andrews,
39 Md. 329. See 'post, § 1792. It
has been reasoned that, in an action
for negligence where the direct fact
in issue is established by undis-
puted evidence, and such fact is de-
cisive of the cause, tlie question is



a question of law for the court ; and
that the jury have no office to perform.
Dascomb v. Buffalo &c. R. Co. 27 Barb.
(N. Y.) 222. But this is true only
where the facts are so unequivocal
that reasonable minds could not draw
different conclusions from them.

5 Gaynor?;. Old Colony &c. R. Co.,
100 Mass. 208; Paterson v. Wallace,
1 Macq. H. L. Cas. 748; Johnson v.
Hudson &c. R. Co., 20 N. Y. 65; Phila.
&c. R. Co. V. Speareu, 47 Pa. St. 300;
Mangam v. Brooklyn &c. R. Co., 38
N. Y. 455; West Chester &c. R. Co. v.
McElw^ee, 67 Pa. St. 311; Seabrook v. .
Hecker, 2 Robt. (N. Y.) 291; Haycroft
V. Lake Shore &c. R. Co., 64 N. Y. 636;
McCarragher v. Gaskell, 42 Hun (N.
Y.), 451; Thurber v. Harlem &c. R.
Co., 60 N. Y. 331; Stackus v. New
York Central &c. R. Co., 79 N. Y. 464:
Wait v. Agricultural Ins. Co., 13 Hun
(N. Y.), 371; ante, § 1663.



\-2\2 PROVINCE OF COUUT AND JURY. [2 TllOllll). Tr.,

§ IGOG. AVhere the Facts are Controverted and the Infer-
ence Donbtful. — The case must also go to tJiejury where, at the
same tiim',thc facts are in dispute and the inferences which fair-
minded men would draw from them are doubtful.^ More briefly,
the (jueslion of negligence is said to be for the jury when there
is a substantial doubt as to the facts, or as to the inferences to be
drawn from them,'^ and it is for the court only when the facts are
undisputed and the inference of negligence is clear. -^

§ 10G7. When a Qnestion for the Judge : General Rule Sug-
gested. — Obviously the question is for the decision of the judge
in cases which are the antithesis of those stated in the preceding
section. Recurring to the principle that, upon a motion for a
nonsuit or for a peremptory instruction to find for the defend-
ant, which motion is sometimes called a cZewiwrro* to the evidence,
every fact wdiich the evidence tends to prove is to be taken as
having been proved in favor of the plaintiff,^ — it may be said as a
general rule, that the judge is authorized to nonsuit the plaintiff
or to direct a verdict for the defendant, according to the mode
of practice in the particular jurisdiction, in either of the two fol-
lowing cases : —

(1.) Where all the facts which the plaintiff' s evidence fairly
tends to })rove, if admitted to be true, would not authorize a
conclusion that the defendant has been guilty of negligence as
matter of law.



1 Nichols V. Sixth Avenue K. Co., sylvauia Canal Co. v. Beutley, 66 Pa.

38 N. Y. 131. See also Railroad Co. v. St. 30, 34; Wyatt v. Citizens' K. Co.,

Stout, 17 Wall. (U. S.) 657; Fernandez 55 Mo. 485; Norton v. Ittuer, 56 Mo.

V. Sacramento City R. Co., 4 Cent. L. J. 351 ; Stoddard v. St. Louis &c. R. Co.,

82; Detroit &c. R. Co. v. Van Stein- 65 Mo. 514; Jenkins v. Little Miami

burg, 17 Mich. 99; State v. Railroad R. Co., 2 Disney (Oh.), 49; Mauennan

Co, 52 N. H. 529; Gaynor v. Old u, Siemerts, 71 Mo. 101, 104.

Colony &c. R. Co., 100 Mass. 208, 212; - Crissey v. Hestonville &c. R. Co.,

McOrath v. Hudson River R. Co., 32 75 Pa. St. 83; Barton v. St. Louis R.

Harb. (N. Y.) 144; s. c. 19 How. Pr. Co., 52 Mo. 253; Keller v. New York

ex. Y.) 211 ; Bridu'cs v. North London Central R. Co., 24 How. Pr. (N Y.'; 172,

]{. Co., L. R. 7 II. L. 213; Beers v. » Dickens «. New York &c. R. Co., 1

Ilousatoiiic H. Co., 19 Conn. 56C ; Abb. App. Dec. 504.

Viuton V. Schwab, 32 Vt. 612; Penn- •» Post, § 2242, ct seq.



Tit. V, Ch LI v.] KEGLIGENCE. 1213

(2.) Where, either upon the plaintiff's evidence, assuming
it to be true, or upon the state of facts shown ))y the evidence in
the whole case, which stand undisputed and which ought not
therefore to be left to the decision of the jury, an inference un-
avoidably arises that the person injured was guilty of negligence,
materially and directly contributing to produce the accident com-
plained of.

§ 1GG8. There must be Evidence legally tending to prove
Negligence. — It is often laid down that the preliminary func-
tion of the judge on such a motion is not to weigh the evidence,
but is limited strictly to determining whether there is or is not
evidence legally tending to prove the fact affirmed, — ^.e., evi-
dence from which, if credited, it may reasonably be inferred, in
legal contemplation, that the fact affirmed exists, laying entirely
out of view the effect of all modifying or countervailing evidence.^
Stated in another way, it is said that, " when the evidence given
at the trial, with all the inferences that the jury could justifiably
draw from it, is so insufficient to support a verdict for the plaint-
iff, that such a verdict, if returned, must be set aside, the court
is not bound to submit the case to the jury, but may direct
a verdict for the defendant." ^ Nothing is gained by these
statements in an accurate understanding of the rule, since they
leave undefined the question, what evidence is to be deemed evi-
dence legally tending to prove negligence.

§ 1669. What is meant by *' Evidence tending to prove." —

" It is apparent," said Scholtield, J., in a recent case in Illinois,
" that evidence tending to prove means more than a scintilla of
evidence, but evidence upon Avhich the jury could, without acting
unreasonably in the ej'c of the law, decide in favor of the plaint-
iff, or the party producing it. It is not intended by this practice

1 Frazer v. Howe, 106 111. 563, 573; ~ Simmons v. Chicago &c. Y[. Co.,

Simmons v. Chicago &c. R. Co., 110 111. 110 111. 340; Lake Shore &c. H. Co. v.
340. See also Hubner v. Feige, 90 111. O'Conner, 115 111. 255, 261.
208; Crowe v. People, 92 111. 231;
Pennsylvania Co. v. Stoelke, 101 111. 201.



1214



PROVINCE OF COURT AND JURY. [2 Thoilip. Tl'.,



that the function of the jury to pass upon questions of fact is to
be invaded, any more than it is intended that such function is to
be invaded by a motion to set aside a verdict and for a new trial,
upon the ground of the want of evidence to sustain the verdict.
In neither case is the court aatliorized to weigh the evidence and
decide wliere the preponderance is." ^ The princii)le that the trial
court will not weigh evidence on a motion for a new trial, and
grant a new trial where the verdict is manifestly against the pre-
ponderance of the evidence, is certainly not acceded to in all
jurisdictions ; but the rule stated is in some jurisdictions applica-
ble only to the procedure of api)ellate courts.-^



1 Bartelott v. luteruatioiial Bauk,
119 111. 259, 272. The learued judge
cites: Milliard New Tr., page 339, sec.
9, etseq.; Johuson v, Moultou, 2 111.
532 ; Lowry v. Orr, G 111. 70 ; Morgan
V. Eyersou, 20 111. 343.

' lu Johusou V. Moulton, supra,
it is said to be a well settled rule of
law that ill trials by jury the I'jeight of
the testimony is a question to l)e de-
"cided by the jury exclusively, and that
their decision consequently cannot be
assigned for error. In Lowry v. Orr,
G 111. 70, 83, the rule of law is said to
be well established, " that, in cases
where the verdict of the jury has been
given contrary to the evidence, or whei'e
there is no evidence at all to support
the verdict, the court will interfere
and relieve the party prejudiced by
such finding, by the grant of a new
trial. But where there is a contrariety
of evidence on both sides, and the
facts and circumstances, by fair and
reasonaljle intendment, will warrant
the inferences of the jury, courts will
reluctantly, if ever, disturb their ver-
dict, notwithstanding It may appear to
be against the strength and weiglit of
the testimony. So, where the verdict
depends upon the credibility of the
witnes.ses, it is tlie peculiar province
of the jury to jud^e of that credibility,



to attach such weight to the testimony
of each as may seem to be proper,
after a due consideration of all the
circumstances arising in the particu-
lar case, such as the relationship ot
the witness to one or both of the par-
ties in the controversy, his supposed
interest in the event of the suit, his
means of knowledge in respect of the
matters in dispute, his appearance
upon the stand, his manner of testify-
ing, his general character for veracity,
and the like and to find their verdict
accordingly." These observations are
no doubt made from the standpoint
of the appellate court, and are nothing
other than a more extended way of
stating the general projjositiou that, in
actions at law, questions of fact will
not be reviewed on appeal or eiTor.
City of Mattoon v. Fallin, 113 111. 249.
It is a sound rule that, within the
limits prescribed by statutes, the
granting of new trials on the ground
that the verdict is against the evidence,
or against the weight of the evidence,
or rendered in disregard of the evi-
dence, is a matter addressing itself to
the sound discretion of the trial judge,
which discretion, as a general rule, is
not reviewable in any appellate pro-
ceeding, though tlie contrary is tlie
case in two or three jurisdictions.



Ti . V, Ch. LIV.] NEGLIGENCE. 1215-

§ 1670. Rule that there must he Reasonahh; Evidence of
Negligence. — The English rule, established by the House of
Lords in u recent case, upon a full consideration of the previous
decisions in that country, is that it is for the judge to say whether
any facts have been established by sufficient evidence, from
which negligence can be reasonahly and legitimately inferred;
and it is for the jury to say whether, from those facts, when sub-
mitted to them, negligence ought to be inferred.^ The judge
may decide the case by a peremptory instruction, or by direct-
ing a nonsuit, according to the practice of the court, where,
assuming all the evidence which works in favor of the plaintiff to
be true, no fair-minded man can draw from it the inference that
the defendant was guilty of a want of that degree of care which
he was bound to exercise under the circumstances. More broadly,
the judge so decides where there has been no failure of duty on
the part of the defendant, — as where the accident arose from
something which the defendant was not bound to anticipate and
guard against. 2 The English rule was thus expressed by Lord
Cairns, L. C: " The judge has a certain duty to discharge, and
the jurors have another and a different duty. The judge has to
say whether any facts have been established by evidence from
which negligence may be reasonably inferred ; the jurors have to
say whether, from those facts, when submitted to them, negli-
gence ought to be inferred. It is, in my opinion, of the greatest
importance in the administration of justice that these separate
functions should be maintained, and should be maintained dis-
tinct. It would be a serious inroad on the province of the jury,
if, in a case where there are facts from which negligence may
reasonably be inferred, the judge were to Avithdraw the case from
the jury, upon the ground that, in his opinion, negligence ought
not to be inferred; and it would, on the other hand, place in the
hands of the jurors a power which might be exercised in the most

The statutory limit in some States is ' Metropolitan R. Co. r. Jackson, 3

that the judge cannot grant more than App. Cas. 193.

two new trials, on the ground that the '^ Daniel v. Metropolitan &c. \l. Co.,

jury have tound against the weight of L. E. .5 11. L. 45.

tue evidence.



121(5 rROVixcE OF court and juuy. [2 Thomp. Tr.,

arbitrary manner, if they were at li})erty to hold that negligence
might be inferred from any state of facts whatever."^ The
following rule, laid down in England, has been approved in Amer-
ica: "It is not enough to say there was some evidence. A
scintilla of evidence, or a mere surmise that there may have been
negligence on the part of the defendants, clearly would not
justify the judge in leaving the case to the jury. There must
have been evidence on which the jury might reasouablj' and prop-
erly conclude that there was negligence."' ^ Another expression
o£the doctrine is that the court ought to direct a verdict for the
defendant, where the jury cannot infer negligence from the facts
in evidence without reasoning irrationally and contrary to com-
mon sense. " These facts and circumstances," said Holmes, J.,
" must be such as would warrant a jury in inferring from them
the fact of negligence by reasoning in the ordinary way, accord-
ing to the natural and proper relation of things, and consistent!}'
with the common sense and experience of mankind.^ A jury is
not to be left or permitted to act by reasoning in any other way
on such facts. "Where it is plain that the jury could not find a
verdict on the evidence offered without reasoning irrationally
against all ordinary common sense and against all proper notions
of justice and right, or against law, or without being influenced
by undue sympathy, prejudice, gross misjudgment or mistaken
im})ressions of the law and facts of the case, — the court will

' Metropolitan 11. Co. v, Jackson, 3 if anj' evidence whatever of negligence
App. Cas. l'J3, l'J7; s. c. 47 L. J. (C.P.) is offered, the question whether there
303. The following English cases may was evidence on the part of the com-
be referred to as illustrating this doc- pany is for the jury, and not for the
trine and the extreme difficulty of ap- court. But this is perhaps mei'cly au-
plying it in practice: Bridges r. North other form of stating the same rule.
London R. Co., L. R. 7 H. L. 213; .s. c. 43 For what is " evidence of negligence,"
L. J. Q. 15. \'>\; Robsou v. Northeast- unless it is evidence from which the
eru R. Co., 4(3 L. .J. Q. B. 50; s. c. in Inference of negligence may be rea-
Ct. of -Vlip., 2 Q. B. Div. 85. These sonably drawn. See also Rose v.
two ca.ses, decided before the case first Northeastern R. Co., 2 Exch. Uiv. 248;
cited, do not come up to the rule there s. c. 40 L. J. (Exch.) 374.
laid down, and must be understood as 2 Cornmau v. Eastern Counties R.
qualified by it. They sul)Stantially Co., 4 Hurl. & N. 781; Beaulieu v.
hold that, in all actions against rail- Portland Co., 48 Me. 291, 2!)(J.
road companies for i)ersonal injuries, ^ Citing 1 Greenl. Ev., §§ 44, 48.



Tit V, Ch. LI v.] NEGLIGENCE. 1217

declare as a matter of law that there is no competent evidence to
be submitted to the jury." ^

§ 1671. Difficulties of Applying this Rule iu Practice. —



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