One
within a foot of the window, and covering it, would be, without
any finding of a jury beyond these facts. In doubtful cases
midway, the question whether the interference was substantial has
been left to the jury. /4/ But as the elements are few and
permanent, an inclination has been shown to lay down a definite
rule, that, in ordinary cases, the building complained of must
not be higher than the distance of its base from the dominant
windows. And although this attempt to work out an exact line
requires much caution, it is entirely philosophical in spirit.
/5/
The same principle applies to negligence. If the whole evidence
in the case was that a party, in full command of [129] senses and
intellect, stood on a railway track, looking at an approaching
engine until it ran him down, no judge would leave it to the jury
to say whether the conduct was prudent. If the whole evidence was
that he attempted to cross a level track, which was visible for
half a mile each way, and on which no engine was in sight, no
court would allow a jury to find negligence. Between these
extremes are cases which would go to the jury. But it is obvious
that the limit of safety in such cases, supposing no further
elements present, could be determined to a foot by mathematical
calculation.
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