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 instance, in some questions of medical
treatment. /2/
[124] 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.
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