The considerations urged in this Lecture are of peculiar importance in this country, or at least in States where the law is as it stands in Massachusetts.In England, the judges at nisi prius express their opinions freely on the value and weight of the evidence, and the judges in banc, by consent of parties, constantly draw inferences of fact.Hence nice distinctions as to the province of court and jury are not of the first necessity.
But when judges are forbidden by statute to charge the jury with respect to matters of fact, and when the court in banc will never hear a case calling for inferences of fact, it becomes of vital importance to understand that, when standards of conduct are left to the jury, it is a temporary surrender of a judicial function which may be resumed at any moment in any case when the court feels competent to do so.Were this not so, the almost universal acceptance of the first proposition in this Lecture, that the general foundation of liability for unintentional wrongs is conduct different from that of a prudent man under the circumstances, would leave all our rights and duties throughout a great part of the law to the necessarily more or less accidental feelings of a jury.
It is perfectly consistent with the views maintained in this Lecture that the courts have been very slow to withdraw questions of negligence from the jury, without distinguishing nicely whether the doubt concerned the facts or the standard to be applied.Legal, like natural divisions, however clear in their general outline, will be found on exact scrutiny to end in a penumbra or debatable land.This is the region of the jury, and only cases falling on this doubtful border are likely to be carried far in court.Still, the tendency of the law must always be to narrow the field of uncertainty.That is what analogy, as well as the decisions on this very subject, would lead us to expect.
The growth of the law is very apt to take place in this way.Two widely different cases suggest a general distinction, which is a clear one when stated broadly.But as new eases cluster around the opposite poles, and begin to approach each other, the distinction becomes more difficult to trace; the determinations are made one way or the other on a very slight preponderance of feeling, rather than of articulate reason; and at last a mathematical line is arrived at by the contact of contrary decisions, which is so far arbitrary that it might equally well have been drawn a little farther to the one side or to the other, but which must have been drawn somewhere in the neighborhood of ,where it falls. In this way exact distinctions have been worked out upon questions in which the elements to be considered are few.For instance, what is a reasonable time for presenting negotiable paper, or what is a difference in kind and what a difference only in quality, or the rule against perpetuities.
An example of the approach of decisions towards each other from the opposite poles, and of the function of the jury midway, is to be found in the Massachusetts adjudications, that, if a child of two years and four months is unnecessarily sent unattended across and down a street in a large city, he cannot recover for a negligent injury; that to allow a boy of eight to be abroad alone is not necessarily negligent; and that the effect of permitting a boy of ten to be abroad after dark is for the jury; a coupled with the statement, which may be ventured on without authority, that such a permission to a young man of twenty possessed of common intelligence has no effect whatever.
Take again the law of ancient lights in England.An obstruction to be actionable must be substantial.Under ordinary circumstances the erection of a structure a hundred yards off, and one foot above the ground, would not be actionable.One within a foot of the window, and covering it, would be, without any finding of a jury beyond these facts.In doubtful cases midway, the question whether the interference was substantial has been left to the jury. But as the elements are few and permanent, an inclination has been shown to lay down a definite rule, that, in ordinary cases, the building complained of must not be higher than the distance of its base from the dominant windows.And although this attempt to work out an exact line requires much caution, it is entirely philosophical in spirit.
The same principle applies to negligence.If the whole evidence in the case was that a party, in full command of senses and intellect, stood on a railway track, looking at an approaching engine until it ran him down, no judge would leave it to the jury to say whether the conduct was prudent.If the whole evidence was that he attempted to cross a level track, which was visible for half a mile each way, and on which no engine was in sight, no court would allow a jury to find negligence.Between these extremes are cases which would go to the jury.But it is obvious that the limit of safety in such cases, supposing no further elements present, could be determined to a foot by mathematical calculation.
The trouble with many cases of negligence is, that they are of a kind not frequently recurring, so as to enable any given judge to profit by long experience with juries to lay 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.
I reserve the relation between negligent and other torts for the next Lecture.
