down rules, and that the elements are so complex that Courts are glad to leave the whole matter in a lump for the jury's determination. 438. HENRY T. TERRY. Leading Principles of Anglo-American Law. (1882. C. IV, Par. 69, pp. 56, 60.) § 69. The Disposition of Mixed Questions. When a mixed question arises there is no theoretical difficulty about the disposition of it. The questions of law are to be decided by the Court and the questions of fact by the triers of fact. In jury trials the Court must tell the jury what the law is on each of the states of fact which appear probable on the evidence, and the jury, having found which of these possible states of fact is the true one, must apply the rule of law given them by the Court. . . . ... 2. Curial Facts. § 70. In General. There is another much less simple class of cases where confusion arises between law and fact. The questions here are really questions of fact, but they are always decided by the Court, and not by the jury, and are usually called questions of law. We may therefore for convenience sake designate them as questions of "curial fact." . . . Most questions of negligence and not a few of malice, probable cause, fraud, and also some others will be found on analysis to turn on one of reasonableness, and this is often one of curial fact. A question of law in the true sense is one that can be decided by the application of a pre-existing rule to the specific facts proved to exist. . . . But in many cases the group of facts that would need to be provided for is so large and complicated, or of such infrequent occurrence, that it is not possible or not worth while to attempt to foresee them or to prescribe any determinate line of conduct. . . . Where the law has laid down no rule, there can be no question of law. Now in most of such complicated cases the law sets up simply the general rule of reasonable conduct. . . . The rule usually propounded, to act as a reasonable and prudent man would in the circumstances, still leaves open the question how such a man would act. No general rule can be imagined which should inform a man how fast, he being such a horseman and riding such a horse as he is, it is reasonable for him to ride through a street of such width and crowded to such an extent with people disposed in such a manner as that in which he finds himself. The question, was the specific conduct of the specific person in the specific circumstances reasonable or not, must equally remain as a question which is really one of fact. When the reasonableness or unreasonableness of the conduct is very plain, the Court will decide it; when it seems to the Court to fairly admit of doubt, it will be handed over to the jury. This is expressed in such sayings as that the Court must decide whether there is any evidence of negligence, malice, fraud, want of probable cause, etc., or that the Court must decide whether the facts may amount to negligence, etc., and the jury whether they do. In any case the Court cannot avoid exercising a tolerably wide discretion whether to decide the question itself or not. . . . A decision of a Court on a question of curial fact becomes however a precedent as much as any other decision, and in a subsequent case falling within the same ratio decidendi should be followed. This is a mode of judicial legislation, and amounts to making a rule applicable to all like states of fact. . . . In this way there is a constant passing over of questions from the domain of fact into that of law. However, there is often a long-continuing uncertainty, and it sometimes happens that a question that has been decided as one of law is afterwards relegated to the region of fact. Thus, in the English decisions on the liability of railroad companies for not providing proper facilities for the safe alighting of passengers from trains, the question whether the company has acted properly has been sometimes decided by the Court and sometimes left to the jury. But in a recent case, BRETT, J. A., after saying, "Is not the history of these cases that after a long struggle it has been decided that they are questions of fact and not of law?" cited the case of Bridges v. The North London Railway Company [post, No. 439], as having put an end to the controversy by deciding them to be questions of fact. 439. BRIDGES v. NORTH LONDON RAILWAY COMPANY HOUSE OF LORDS. 1874 L. R. 7 H. L. (E. & I. App.) 213 . . . B. was in the last carriage of a railway train. Before reaching the station at which he was to alight the train had to pass through a tunnel. In that tunnel there was, first, a heap of hard rubbish lying by the side of the rails, irregular in form and height, then a short sloping piece of ground, then a piece of flat platform, like the main platform, but narrower, and within the tunnel. Beyond these was the main platform itself. The train only partially went up to the main platform, leaving the last two carriages within the tunnel, which had no light within it, and on the occasion in question was filled with steam. The last carriage but one came opposite the narrow platform; the last carriage was opposite the hard rubbish. A passenger in the last carriage but one (who was called as a witness at the trial) heard the name of the station called out in the usual way and got out upon the narrow platform. He then heard a groaning, and proceeding farther back into the tunnel found B. lying on the rubbish with his legs between the wheels of the last carriage, but neither of them had touched him. B.'s leg was broken, and he had received other injuries, from the effects of all which he died. The witness heard the warning, "Keep your seats," and shortly afterwards the train moved on. Mr. Justice BLACKBURN was of opinion that there was no evidence of negligence on the part of the defendants, and directed a nonsuit; but the jury expressing a strong opinion to the contrary, a verdict. was taken for the plaintiff, the jury assessing the damages at £1200. The nonsuit was then entered, but leave was reserved to move to enter the verdict for the plaintiff for the damages thus contingently assessed. A rule was accordingly moved for, and, after argument in the Court of Queen's Bench, was refused. On appeal to the Exchequer Chamber the facts were stated in a case, power being reserved to the judges to draw inferences of fact. The case was heard, and the judgment of the Court below was affirmed by four judges to three. This appeal was then brought. 1 L. R. 6 Q. B. 377. The Judges were summoned, and Lord Chief Baron KELLY, Mr. Baron MARTIN, Mr. Justice KEATING, Mr. Justice BRETT, Mr. Justice DENMAN, and Mr. Baron POLLOCK attended. Mr. Henry James, Q. C., and Mr. Kemp (Mr. Snagge was with them), for the plaintiff in error. The question here is, whether there was evidence of negligence on the part of the defendants, which ought to have been left to the jury. . Sir J. Karslake, Q. C., and Mr. Aspinall, Q. C. (Mr. A. G. Shiell was with them), for the defendants in error. The judgment here must be affirmed unless it clearly appears that the deceased man was killed by the negligence of the company's servants. . . . There being no evidence on which the jury could reasonably find, in point of fact, that there had been negligence, there was no necessity for leaving the case to the jury, but the Judge rightly took on himself to say that no case had been made out for the plaintiff and that there must be a nonsuit. . . Lord CAIRNS, who presided in the absence of the Lord Chancellor, proposed that the following question should be put to the Judges: Whether in the facts stated in the special case, and having regard to the liberty thereby given to the Court to draw any inference or find any facts from the facts therein stated, there was evidence of negligence on the part of the respondents which ought to have been left to the jury?.. Mr. Justice BRETT. My Lords, before determining whether there is or is not evidence fit to be left to a jury in support of questions, one must know what the questions are which are to be so left. It seems impossible to answer satisfactorily the question whether there was or was not evidence of negligence which ought to have been left to the jury, without first determining the form in which the question of negligence, if left, should be judicially stated to a jury. It is farther necessary, as it seems to me, to consider the formula which should be applied to the facts in evidence, in order to see whether they ought or ought not to be left to the jury. And farther, how much of the dealing with facts is within the province of the Judge, and how much is exclusively within the province of the jury. . . What is the direction in point of law which ought to be given to the jury at the trial? . . . The proposition which the plaintiff undertakes to substantiate is that he has suffered injury by reason of the negligence of the defendants or their servants. . . . This direction, however, is not yet sufficient. It requires to be amplified by a legal definition of what amounts to negligence. That definition is, that negligence consists in the doing of some act which a person of ordinary care and skill would not do under the circumstances, or in the omitting to do some act which a person of ordinary care and skill would do under 1 Mr. Baron MARTIN heard the argument, but retired from the Bench before the Judges' opinions were delivered. the circumstances. The final and full and strict direction to a jury therefore in such cases is contained in the following questions: Have the defendants or their servants done anything in the conveyance of the plaintiff to his destination which persons of ordinary care and skill under the circumstances would not have done, or have they or their servants omitted to do anything which persons of ordinary care and skill under the circumstances would have done? . . . Such is the direction to the jury. But before giving this direction it is the duty of the Judge to determine whether there is evidence fit to be left to the jury on each of the propositions which it is necessary that the plaintiff should establish. This being a duty cast exclusively on the Judge, is a question to be decided according to some proposition or rule of law. What is that proposition or rule of law which the Judge is bound to apply to the evidence in order to determine this question of law? It cannot merely be, is there evidence? . . . The proposition seems to me to be this: Are there facts in evidence which if unanswered would justify men of ordinary reason and fairness in affirming the question which the plaintiff is bound to maintain? It may be said that this is so indefinite as to amount to no rule, that it leaves the Judge after all to say whether in his individual opinion the facts in evidence would prove the proposition; but I cannot think so. It is surely possible to admit that reasonable and fair men might come to a conclusion which oneself would not arrive at. And Judges may be able reasonably to say frequently, that although they would not upon the facts have come to the same conclusion to which the jury has come, yet they or he cannot say but that reasonable and fair men might agree with the conclusion of the jury; or, in other words, that, although they would not have arrived at the same conclusion, it is not contrary to reason to have arrived at it. The Judge must, therefore, before directing the jury in the terms above set forth, first determine the following questions: Are there facts in evidence upon which, if unanswered, men of ordinary reason and fairness might fairly say that the plaintiff had been injured by some act of commission or omission by the defendants or their servants?... If the Judge, not deciding the final issues according to his own individual view, but determining according to the prop sitions last laid down, holds that there is no evidence fit to be left to the jury on some one of the cardinal questions before stated, he must direct the jury as matter of law that there is no case in favour of the plaintiff, or he must nonsuit the Plaintiff. . . . If he holds there is evidence on each of the cardinal questions, he must leave the case to the jury according to the direction in point of law before laid down in this opinion. When the Judge has so directed the jury as to the law he has finished ail which it is legal for him exclusively to determine in the case... The importance of the distinction as applied to this class of cases seems to me to be manifest. A judge may be of opinion that the calling out of the name of the station ought not in any way to actuate the passenger; [yet] jury after jury may decide that according to the ordinary understanding both of railway officials and passengers it is an indication upon which a passenger may fairly rely [so] that, directly the train stops, he may, unless he receives some other warning, safely alight. . . . If such decisions may be overruled on the mere ground that the Courts or judges do not agree with them, juries are bound to matters of fact by the view of the judges as to facts. This cannot be. My Lords, the paramount importance which I attach to the enunciation of a rule of conduct or of decision by your Lordships is, that it will prevent the decisions in these cases from being governed by the many different views taken by different judges of facts of every day occurrence in life, and which no one can say are questions of law. The kind of discussion which may be found in this case in the Courts below, and the differing grounds of decision to be found in so many cases, would not be repeated. Applying to the question proposed by your Lordships the rule I have submitted to be the right one, I cannot entertain any doubt that there was in this case evidence fit to be left to the jury, and I therefore answer your Lordships' question in the affirmative. . . Judgment of the Court of Exchequer Chamber reversed, and the verdict to be entered for the plaintiff for the sum of £1200. ... 440. WABASH RAILWAY COMPANY v. BROWN. (1894. 152 Ill. 484, 488.) Phillips, J.: Negligence is ordinarily a question of fact. Where the evidence on material facts is conflicting, or where, on undisputed facts, fair-minded men of ordinary intelligence may differ as to the inferences to be drawn, or where, on even a conceded state of facts, a different conclusion would reasonably be reached by different minds, in all such cases negligence is a question of fact. The fact to be determined is the existence or non-existence of negligence. . . . It may also become a question of law, if a single material fact is conclusively shown or uncontradicted, the existence or non-existence of which is conclusive of a right of recovery. 441. PENNSYLVANIA RAILROAD COMPANY v. KERR SUPREME COURT OF PENNSYLVANIA. 1869 62 Pa. 353 MAY 29th and 21st, 1870. Before THOMPSON, C. J., READ, AGNEW, and SHARSWOOD, JJ. WILLIAMS, J., absent. Error of the Court of Common Pleas of Huntington County: No. 25, to May Term, 1870. This was an action on the case brought June 12th, 1868, by William Kerr against the Pennsylvania Railroad Company. The action was to recover for the loss of the plaintiff's furniture in a hotel near the Pennsylvania Railroad, which was destroyed by fire from negligence, |