Wilds v. . the Hudson River Railroad Company

Sutherland, J.,

(dissenting). The question is, whether the whole case at the close of the testimony was not a case for the juryj whether the question of negligence on the part of the intestate, as well as the question of negligence on the part of the employees of the defendant, were not both questions for the jury, to be passed upon by them as questions of conduct or misconduct, under all the circumstances of the case.

In my opinion, the acutest human intéllect will glance off with every attempt to make either of these questions, questions of law. , ' „ '

It may-be-conceded, that there was no contradictory evidence as to the conduct of the intestate, in approaching the crossingyét, whéther such conduct was negligent or not, was a question for the jury, under all the' circumstances of the case. - The circumstances of a particular cáse may be.eoneeded, and yet, as evidence or arguments on the question of-negligence, they may be, and generally are, conflicting; that is, some of the conceded circumstances may, and generally do, tend to show negligence, and some, care and attention. Negligence is a cdnclusion or judgment as to conduct, arrived at

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by weighing or comparing these circumstances or arguments. ' I have always understood that the common law had made it the province of the jury, when the trial was by jury, to pass upon these circumstances and draw the conclusion.

Sir William Jones, at the conclusion of his work on Bailments, states this as a corollary from the principles therein laid down. At an early day, the books and judges undertook to define, as between bailor and bailee, gross, ordinary and slight negligence. It must be conceded, if gross, ordinary . and slight negligence, as between bailor and bailee, had been defined by the law, so as to be'practicable, then, whether the conceded circumstances of a particular case constituted or showed gross, ordinary or slight negligence, would be a question of law; but even as between bailor and bailee, on a conceded state of facts, the question of gross negligence has been'held to be a question for the jury.

(Dorrman

v.

Jenkins,

2 Adol. & Ellis, 256;

Nelson

v.

Macintosh,

1 Starkie, 237.) In

Patterson

v.

Wallace,

in the House of Lords, 1853 (28 Eng. Law and Eq., 48;

S. C.,

1 McQueen, 748), there was no controversy about the facts, but only whether a certain result was to be attributed to negligence on one side or to rashness on the other. The judge having withdrawn the case from the jury in the court below, it was held in the House of Lords to be a pure question of fact for the jury; and the judgment below was reversed. At the conclusion of his opinion, Lord Chancellor Cranworth says: “ With all deference to the learned judges, it appears to me'that they have misunderstood the province of a judge at a trial of this sort.” See, also,

Fraser

v.

Hill

(1 McQueen, 397), to show that it is the province of a jury to draw the presumption of a fact from circumstances ; also, Chancellor Jones’ opinion, in

Jackson

v.

Seward

( 8 Cow., 409 , &c.; 1 Greenl. Ev., §§ 44, 48.)

In

Bernhardt

v.

Rens. & Sar. R. R. Co.

( 32 Barb., 169 ); the question arose on a motion to nonsuit. Judge Ingraham, in his opinion, says: “ It will not be denied that negligence is, in all instances, a question of fact.” This case was affirmed in this court, but has not been reported. Judge Selden says,

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in his opinion in the case in this court: “ It is not easy to suppose a case in which, the court would be warranted in holding, as matter of law, that negligence was proved.”

„ A question of negligence presents the question, what a person ought or ought not to have done under the circumstances of the case. The law has not .undertaken, except in certain instances, to define, and could not very well define, this duty under particular circumstances; for it could not anticipate and define the circumstances under which the duty arises. A question of negligence is a question belonging to the common affairs.and experience of men; it is a question-to be decided under the circumstances of the case, by the common experience of men as to the duties of each other. Its decisioú is really the expression of an opinion or judgment as to the conduct of another under particular circumstances; and, as has been observed, it is very rarely, even where there is no controversy about the circumstances, that-they are ntit conflicting, as evidence or arguments on the question of negligence ; for some will tend to show care, and some negligence.

This being the nature of a question of negligence, is it extraordinary that the common'law should have committed the decision of it to a jury ?

If, as was intimated by Judge Barculo, in

Haring

v.

New York & Erie R. R. Co.

( 13 Barb., 9 ), juries cannot be safely trusted with this question, as between an individual and a railroad corporation, then, in such cases, let the legislature alter the common law, and, in such, cases, commit it to the court.

It is very clear to me that, in this case, the questions as to negligence on the part of the intestate, as well as to negligence on the part of the defendant’s employees, were questions of fact for the jury; and that the court very properly refused to hold otherwise.

My conclusion is, that the judgment of the Supreme Court „ .should be affirmed, with costs.

Selden, Ch. J., and Wright, J., were absent.

Judgment reversed and new trial ordered.