When a case arises in which the standard of conduct, pure and simple, is submitted to the jury, the explanation is plain.It is that the court, not entertaining any clear views of public policy applicable to the matter, derives the rule to be applied from daily experience, as it has been agreed that the great body of the law of tort has been derived.But the court further feels that it is not itself possessed of sufficient practical experience to lay down the rule intelligently.It conceives that twelve men taken from the practical part of the community can aid its judgment. Therefore it aids its conscience by taking the opinion of the jury.
But supposing a state of facts often repeated in practice, is it to be imagined that the court is to go on leaving the standard to the jury forever? Is it not manifest, on the contrary, that if the jury is, on the whole, as fair a tribunal as it is represented to be, the lesson which can be got from that source will be learned? Either the court will find that the fair teaching of experience is that the conduct complained of usually is or is not blameworthy, and therefore, unless explained, is or is not a ground of liability; or it will find the jury oscillating to and fro, and will see the necessity of making up its mind for itself.There is no reason why any other such question should not be settled, as well as that of liability for stairs with smooth strips of brass upon their edges.The exceptions would mainly be found where the standard was rapidly changing, as, for in.stance, in some questions of medical treatment. If this be the proper conclusion in plain cases, further consequences ensue.Facts do not often exactly repeat themselves in practice; but cases with comparatively small variations from each other do.A judge who has long sat at nisi prius ought gradually to acquire a fund of experience which enables him to represent the common sense of the community in ordinary instances far better than an average jury.He should be able to lead and to instruct them in detail, even where he thinks it desirable, on the whole, to take their opinion.Furthermore, the sphere in which he is able to rule without taking their opinion at all should be continually growing.
It has often been said, that negligence is pure matter of fact, or that, after the court has declared the evidence to be such that negligence may be inferred from it, the jury are always to decide whether the inference shall be drawn. But it is believed that the courts, when they lay down this broad proposition, are thinking of cases where the conduct to be passed upon is not proved directly, and the main or only question is what that conduct was, not what standard shall be applied to it after it is established.
Most cases which go to the jury on a ruling that there is evidence from which they may find negligence, do not go to them principally on account of a doubt as to the standard, but of a doubt as to the conduct.Take the case where the fact in proof is an event such as the dropping of a brick from a railway bridge over a highway upon the plaintiff, the fact must be inferred that the dropping was due, not to a sudden operation of weather, but to a gradual falling out of repair which it was physically possible for the defendant to have prevented, before there can be any question as to the standard of conduct. So, in the case of a barrel falling from a warehouse window, it must be found that the defendant or his servants were in charge of it, before any question of standard can arise. It will be seen that in each of these well-known cases the court assumed a rule which would make the defendant liable if his conduct was such as the evidence tended to prove.When there is no question as to the conduct established by the evidence, as in the case of a collision between two trains belonging to the same company, the jury have, sometimes at least, been told in effect that, if they believed the evidence, the defendant was liable. The principal argument that is urged in favor of the view that a more extended function belongs to the jury as matter of right, is the necessity of continually conforming our standards to experience.No doubt the general foundation of legal liability in blameworthiness, as determined by the existing average standards of the community, should always be kept in mind, for the purpose of keeping such concrete rules as from time to time may be laid down conformable to daily life.No doubt this conformity is the practical justification for requiring a man to know the civil law, as the fact that crimes are also generally sins is one of the practical justifications for requiring a man to know the criminal law.But these considerations only lead to the conclusion that precedents should be overruled when they become inconsistent with present conditions; and this has generally happened, except with regard to the construction of deeds and wills.On the other hand, it is very desirable to know as nearly as we can the standard by which we shall be judged at a given moment, and, moreover, the standards for a very large part of human conduct do not vary from century to century.
