It will be observed that the existence of the external tests of liability which will be mentioned, while it illustrates the tendency of the law of tort to become more and more concrete by judicial decision and by statute, does not interfere with the general doctrine maintained as to the grounds of liability.The argument of this Lecture, although opposed to the doctrine that a man acts or exerts force at his peril, is by no means opposed to the doctrine that he does certain particular acts at his peril.
It is the coarseness, not the nature, of the standard which is objected to.If, when the question of the defendant's negligence is left to a jury, negligence does not mean the actual state of the defendant's mind, but a failure to act as a prudent man of average intelligence would have done, he is required to conform to an objective standard at his peril, even in that case.
When a more exact and specific rule has been arrived at, he must obey that rule at his peril to the same extent.But, further, if the law is wholly a standard of external conduct, a man must always comply with that standard at his peril.
Some examples of the process of specification will be useful.In LL.Alfred, 36, providing for the case of a man's staking himself on a spear carried by another, we read, "Let this (liability) be if the point be three fingers higher than the hindmost part of the shaft; if they be both on a level,...be that without danger."The rule of the road and the sailing rules adopted by Congress from England are modern examples of such statutes.By the former rule, the question has been narrowed from the vague one, Was the party negligent? to the precise one, Was he on the right or left of the road? To avoid a possible misconception, it may be observed that, of course, this question does not necessarily and under all circumstances decide that of liability; a plaintiff may have been on the wrong side of the road, as he may have been negligent, and yet the conduct of the defendant may have been unjustifiable, and a ground of liability. So, no doubt, a defendant could justify or excuse being on the wrong side, under some circumstances.The difference between alleging that a defendant was on the wrong side of the road, and that he was negligent, is the difference between an allegation of facts requiring to be excused by a counter allegation of further facts to prevent their being a ground of liability, and an allegation which involves a conclusion of law, and denies in advance the existence of an excuse.Whether the former allegation ought not to be enough, and whether the establishment of the fact ought not to shift the burden of proof, are questions which belong to the theory of pleading and evidence, and could be answered either way consistently with analogy.I should have no difficulty in saying that the allegation of facts which are ordinarily a ground of liability, and which would be so unless excused, ought to be sufficient.But the forms of the law, especially the forms of pleading, do not change with every change of its substance, and a prudent lawyer would use the broader and safer phrase.
The same course of specification which has been illustrated from the statute- book ought also to be taking place in the growth of judicial decisions.That this should happen is in accordance with the past history of the law.It has been suggested already that in the days of the assize and jurata the court decided whether the facts constituted a ground of liability in all ordinary cases.A question of negligence might, no doubt, have gone to the jury.Common sense and common knowledge are as often sufficient to determine whether proper care has been taken of an animal, as they are to say whether A or B owns it.The cases which first arose were not of a kind to suggest analysis, and negligence was used as a proximately simple element for a long time before the need or possibility of analysis was felt.Still, when an issue of this sort is found, the dispute is rather what the acts or omissions of the defendant were than on the standard of conduct.
The distinction between the functions of court and jury does not come in question until the parties differ as to the standard of conduct.Negligence, like ownership, is a complex conception.Just as the latter imports the existence of certain facts, and also the consequence (protection against all the world) which the law attaches to those facts; the former imports the existence of certain facts (conduct) and also the consequence (liability) which the law attaches to those facts.In most cases the question is upon the facts, and it is only occasionally that one arises on the consequence.
It will have been noticed how the judges pass on the defendant's acts (on grounds of fault and public policy) in the case of the thorns, and that in Weaver v.Ward it is said that the facts constituting an excuse, and showing that the defendant was free from negligence, should have been spread upon the record, in order that the court might judge.A similar requirement was laid down with regard to the defence of probable cause in an action for malicious prosecution. And to this day the question of probable cause is always passed on by the court.Later evidence will be found in what follows.
