He should be able to lead and to
instruct them in detail, even where he thinks it desirable, on
the whole, to take their opinion. Furthermore, the sphere in
which he is able to rule without taking their opinion at all
should be continually growing.
It has often been said, that negligence is pure matter of fact,
or that, after the court has declared the evidence to be such
that negligence may be inferred from it, the jury are always to
decide whether the inference shall be drawn. /1/ But it is
believed that the courts, when they lay down this broad
proposition, are thinking of cases where the conduct to be passed
upon is not proved directly, and the main or only question is
what that conduct was, not what standard shall be applied to it
after it is established.
Most cases which go to the jury on a ruling that there is
evidence from which they may find negligence, do not go to them
principally on account of a doubt as to the standard, but of a
doubt as to the conduct. Take the case where the fact in proof is
an event such as the dropping of a brick from a railway bridge
over a highway upon the plaintiff, the fact must be inferred that
the dropping was [125] due, not to a sudden operation of weather,
but to a gradual falling out of repair which it was physically
possible for the defendant to have prevented, before there can be
any question as to the standard of conduct.
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