Thus it is said to
be actionable negligence to let a house for a dwelling knowing it
to be so infected with small-pox as to be dangerous to health,
and concealing the knowledge. /3/ To explain the acts or
omissions in such a [122] case would be to prove different
conduct from that ruled upon, or to show that they were not,
juridically speaking, the cause of the damage complained of. The
ruling assumes, for the purposes of the ruling, that the facts in
evidence are all the facts.
The cases which have raised difficulties needing explanation are
those in which the court has ruled that there was prima facie
evidence of negligence, or some evidence of negligence to go to
the jury.
Many have noticed the confusion of thought implied in speaking of
such cases as presenting mixed questions of law and fact. No
doubt, as has been said above, the averment that the defendant
has been guilty of negligence is a complex one: first, that he
has done or omitted certain things; second, that his alleged
conduct does not come up to the legal standard. And so long as
the controversy is simply on the first half, the whole complex
averment is plain matter for the jury without special
instructions, just as a question of ownership would be where the
only dispute was as to the fact upon which the legal conclusion
was founded.
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