/1/ But when a controversy arises on the second
half, the question whether the court or the jury ought to judge
of the defendant's conduct is wholly unaffected by the accident,
whether there is or is not also a dispute as to what that conduct
was. If there is such a dispute, it is entirely possible to give
a series of hypothetical instructions adapted to every state of
facts which it is open to the jury to find. If there is no such
dispute, the court may still take their opinion as to the
standard. The problem is [123] to explain the relative functions
of court and jury with regard to the latter.
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. /1/ Therefore it aids its conscience by taking the
opinion of the jury.
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