For instance, experience shows that a good many guns supposed to be unloaded go off and hurt people.The ordinarily intelligent and prudent member of the community would foresee the possibility of danger from pointing a gun which he had not inspected into a crowd, and pulling the trigger, although it was said to be unloaded.Hence, it may very properly be held that a man who does such a thing does it at his peril, and that, if damage ensues, he is answerable for it.The co-ordinated acts necessary to point a gun and pull a trigger, and the intent and knowledge shown by the co-ordination of those acts, are all consistent with entire blamelessness.They threaten harm to no one without further facts.But the one additional circumstance of a man in the line and within range of the piece makes the conduct manifestly dangerous to any one who knows the fact.There is no longer any need to refer to the prudent man, or general experience.The facts have taught their lesson, and have generated a concrete and external rule of liability.He who snaps a cap upon a gun pointed in the direction of another person, known by him to be present, is answerable for the consequences.
The question what a prudent man would do under given circumstances is then equivalent to the question what are the teachings of experience as to the dangerous character of this or that conduct under these or those circumstances; and as the teachings of experience are matters of fact, it is easy to see why the jury should be consulted with regard to them.They are, however, facts of a special and peculiar function.Their only bearing is on the question, what ought to have been done or omitted under the circumstances of the case, not on what was done.Their function is to suggest a rule of conduct.
Sometimes courts are induced to lay down rules by facts of a more specific nature; as that the legislature passed a certain statute, and that the case at bar is within the fair meaning of its words; or that the practice of a specially interested class, or of the public at large, has generated a rule of conduct outside the law which it is desirable that the courts should recognize and enforce.These are matters of fact, and have sometimes been pleaded as such.But as their only importance is, that, if believed, they will induce the judges to lay down a rule of conduct, or in other words a rule of law, suggested by them, their tendency in most instances is to disappear as fast as the rules suggested by them become settled. While the facts are uncertain, as they are still only motives for decision upon the law,--grounds for legislation, so to speak,--the judges may ascertain them in any way which satisfies their conscience.Thus, courts recognize the statutes of the jurisdiction judicially, although the laws of other jurisdictions, with doubtful wisdom, are left to the jury. They may take judicial cognizance of a custom of merchants. In former days, at least, they might inquire about it in pais after a demurrer. They may act on the statement of a special jury, as in the time of Lord Mansfield and his successors, or upon the finding of a common jury based on the testimony of witnesses, as is the practice to-day in this country.But many instances will be found the text-books which show that, when the facts are ascertained, they soon cease to be referred to, and give place to a rule of law.
The same transition is noticeable with regard to the teachings of experience.There are many cases, no doubt, in which the court would lean for aid upon a jury; but there are also many in which the teaching has been formulated in specific rules.
These rules will be found to vary considerably with regard to the number of concomitant circumstances necessary to throw the peril of conduct otherwise indifferent on the actor.As the circumstances become more numerous and complex, the tendency to cut the knot with the jury becomes greater.It will be useful to follow a line of cases up from the simple to the more complicated, by way of illustration.The difficulty of distinguishing rules based on other grounds of policy from those which have been worked out in the field of negligence, will be particularly noticed.
In all these cases it will be found that there has been a voluntary act on the part of the person to be charged.The reason for this requirement was shown in the foregoing Lecture.
Unnecessary though it is for the defendant to have intended or foreseen the evil which he has caused, it is necessary that he should have chosen the conduct which led to it.But it has also been shown that a voluntary act is not enough, and that even a co-ordinated series of acts or conduct is often not enough by itself.But the co-ordination of a series of acts shows a further intent than is necessarily manifested by any single act, and sometimes proves with almost equal certainty the knowledge of one or more concomitant circumstances.And there are cases where conduct with only the intent and knowledge thus necessarily implied is sufficient to throw the risk of it on the actor.
For instance, when a man does the series of acts called
