II.- Evidence of Negligence.

Due

Negligence a question of mixed fact and law. care and caution, as we have seen, is the diligence of a reasonable man, and includes reasonable competence in cases where special competence is needful to ensure safety. Whether due care and caution have been used in a given case is, by the nature of things, a question of fact. But it is not a pure question of. fact in the sense of being open as a matter of course and without limit. Not every one who suffers harm which he thinks can be set down to his neighbour's default is thereby entitled to the chance of a jury giving him damages. The field of inquiry has limits defined, or capable of definition, by legal principle and judicial discussion. Before the Court or the jury can proceed to pass upon the facts alleged by the plaintiff, the Court must be satisfied that those facts, if proved, are in law capable of supporting the inference that the defendant has failed in

Negligence a question of mixed fact and law. It may be said that the law determines the duty and the evidence shows whether the duty was performed. When there is no evidence of negligence, or where the facts in the case are undisputed and conclusively established, and there is no reasonable chance for drawing different conclusions from them, the question is one of law for the court, otherwise it is for the jury. "The court is required to charge the law, and the jury to find the facts. The law, however, does not state what facts proved will show the absence of ordinary care. It could not do so as applicable to every case which arises. The cases involving this question are so different in their facts, so various, so complicated, and arising under so many different circumstances, that it would be utterly impossible to lay down any general principle of law by which every special case could be measured and tested as to the fact of negligence, and which would enable the judge to say to the jury, as matter of law, such and such facts show absence or presence of ordinary care." Bridger v. Railroad Co., 25 N. C. 30. See Carrico v. West Virginia C. & P. Ry. Co., 35 W. Va. 397; 14 S. E. Rep. 12; Nolan v. New York, etc. R. Co., 53 Conn. 471; Needham v. Louisville & N. R. Co., 85 Ky. 423; 3 S. W. Rep. 797; Pittsburg, etc. R. Co. v. Evans, 53 Pa. St. 250; Eagan v. Fitchburg R. Co., 101 Mass. 315; Maloy v. New York Cent. R. Co., 58 Barb. 182; Gagg v. Vetter, 41 Ind. 254; Pennsylvania Canal Co.

what the law requires at his hands. In the current forensic phrase, there must be evidence of negligence. The peculiar relation of the judge to the jury in our common law system has given occasion for frequent and minute discussion on the propriety of leaving or not leaving for the decision of the jury the facts alleged by a plaintiff as proof of negligence. Such discussions are not carried on in the manner best fitted to promote the clear statement of principles; it is difficult to sum up their results, and not always easy to reconcile them.

The tendency of modern rulings of Courts of Appeal has

v. Bentley, 66 Pa. St. 30; Emery v. Railroad, 102 N. C. 230; 9 S. E. Rep. 139; Chicago City Ry. Co. v. Robinson, 127 Ill. 1; Pike v. Grand Trunk Ry. Co., 39 Fed. Rep. 258; Scheffer v. Railroad Co., 105 U. S. 249; Purvis v. Coleman, 1 Bosw. 321; Catawissa etc. R. Co. v. Armstrong, 52 Pa. St. 282; Baltimore etc. R. Co. v. State, 36 Md. 366; Detroit etc. R. Co. v. Van Steinburg, 17 Mich. 118; Philadelphia, etc. R. v. Frank, 67 Md. 339; Sutton v. New York, etc. R. Co., 66 N. Y. 243; Chicago etc. R. Co. v. McLanlen, 84 Ill. 109; Tarwater v. Hannibal R. Co., 42 Mo. 193; Coppins v. New York, etc. R. Co.,43 Hun, 26; Simms v. South Carolina R. Co., 27 S. C. 268; 30 Am. & Eng. R. Cas. 571; Ohio etc. R. Co. v. Collarn, 73 Ind. 261; 5 Am. & Eng. R. Cas. 554; Lincoln v. Gillilan, 18 Neb. 114; Johnson v. Missouri Pac. R. Co., 18 Neb. 690; Hathaway v. East Tennessee, etc. R. Co., 29 Fed. Rep. 489; Hoyt v. Hudson, 41 Wis. 105; Philadelphia, etc. R. Co. v. Schertle, 97 Pa. St. 450; 2 Am. & Eng. R. Cas. 158; Boland v. Missouri R. Co., 36 Mo. 484; Brower v. Edson, 47 Mich. 91; Barton v. St. Louis, etc., R. Co. 52 Mo. 353; New York, etc. R. Co. v. Skinner, 19 Pa. St. 298; New Jersey Express Co. v. Nichols, 33 N. J. L. 434; Pennsylvania R. Co. v. Righter, 42 Id. 180; 2 Am. & Eng. R. Cas. 220; Sullivan v. Chrysolyte Mining Co., 21 Fed. Rep. 892; Pleasants v. Faut, 22 Wall. 116; Filer v. New York Cent. R. Co., 49 N. Y. 47; Beaulien v. Portland Co., 48 Me. 291; Cagger v. Lansing, 64 N. Y. 417; Bagley v. Cleveland Rolling Mill, 21 Fed. Rep. 159; Barton v. St. Louis & I. M. R. Co., 52 Mo. 253; Atkinson v. The Illinois Milk Co., 44 Mo. App. 153; Chaffie v. Old Colony R. Co., 17 R. I. 658; 24 At. Rep. 141; Woolwine v. C. & O. R. Co., 36 W. Va. 329; 15 S. E. Rep. 85; Sexton v. Zett, 44 N. Y. 430; Woolfolk v. Macon & A. R. Co., 56 Ga. 457; Mississippi Cent. R. Co. v. Mason, 51 Miss. 234; Gonzolas v. New York etc. R. Co., 38 N. Y. 442; Goodlett v. Louisville & N. R. R. Co., 122 U. S. 391; Crowley v. Strouse (Cal.), 33 Pac. Rep. 456; State v. Lauer (N. J.), 26 At. Rep. 180; Chicago, B. & Q. R. Co. v. Landauer (Neb.), 54 N. W. Rep. 976.

been, if not to enlarge the province of the jury, to arrest the process of curtailing it. Some distinct boundaries, however, are established.

Burden of proof.

Where there is no contract between the parties, the burden of proof is on him who complains of negligence. He must not only show that he suffered

Burden of proof. Agreeing with the text that the burden of proof is on the plaintiff are numerous American cases. The plaintiff is not bound to prove more than enough to raise a fair presumption of negligence, on the part of the defendant, to plaintiff's injury. Rosenfield v. Arrol, 44 Minn. 395; 44 N. W. Rep. 768. See Halbrook v. Utica etc. R. Co., 12 N. Y. 236; 64 Am. Dec. 502; Searles v. Manhattan R. Co., 101 N. Y. 661; 25 Am. & Eng. R. Cas. 358; Seybold v. New York, etc. R. Co., 95 N. Y. 562; 47 Am. Rep. 75; 18 Am. & Eng. R. Cas. 162; Hayes v. Mich. Cent. R. Co., 111 U. S. 228; 15 Am. & Eng. R. Cas. 394; Philadelphia etc. R. Co. v. Stibbing, 62 Md. 504; 19 Am. & Eng. R. Cas. 36; Caldwell v. New Jersey Steamboat Co., 47 N. Y. 291; Stratton v. Central City H. R. Co., 95 Ill. 25; 1 Am. & Eng. R. Cas. 115; Kane v. Hibernia Ins. Co., 39 N. J. L. 697; 23 Am. Rep. 239; Welch v. Jugenheimer, 56 Ia. 11; 41 Am. Rep. 77, overruling Barton v. Thompson, 46 Ia. 30; 26 Am. Rep. 131; Hershberger v. Lynch (Pa.), 11 At. Rep. 642; Haskins v. Utah Northern Ry. Co. (Idaho), 13 Pac. Rep. 343; Seybolt v. New York etc. R. Co., 95 N. Y. 562; 47 Am. Rep. 75; Gliddon v. McKintry, 28 Ala. 408; Chicago, B. & Q. R. Co. v. Harwood, 90 Ill. 425; Allen v. Willard, 57 Pa. St. 374; Hobson v. New Mexico & A. R. Co. (Ariz.), 11 Pac. Rep. 545; Dowell v. Guthrie, 99 Mo. 653; 12 S. W. Rep. 900; Thompson v. Duncan, 76 Ala. 338.

Where the rights and duties are equal and one is injured by another it is incumbent upon him to prove that the other was negligent before he can recover therefor. Thus, "foot passengers have equal rights in the streets with those mounted on horseback or driving in carriages. Neither have a priority of right over the other. Both are bound to use reasonable care to avoid collision." Stringer v. Frost, 116 Ind. 477; 19 N. E. Rep. 431, citing Belton v. Baxter, 54 N. Y. 245. So, where two persons collide in the street and one is injured it cannot be inferred that the other was negligent. See Hazel v. Peoples' Pass. Ry. Co., 132 Pa. St. 96; 18 At. Rep. 1116; 25 W. N. C. 345; Piollet v. Simmers, 106 Pa. St. 95; Pittsb. etc. Ry. Co. v. Taylor, 104 Id. 306; North Side Street Ry. Co. v. Tippins (Tex. App.) 14 S. W. Rep. 1067; Broschart v. Tuttle, 59 Conn. 1; 21 At. Rep. 925. In England it is a general rule that it is not incumbent upon the plaintiff to prove that he was free from negligence or was using ordinary care. While this doctrine has been followed in America by a number of cases,

harm in such a manner that it might be caused by the defendant's negligence; he must show that it was so caused, and to do this he must prove facts inconsistent with due diligence on the part of the defendant. "Where the evidence given is equally consistent with the existence or nonexistence of negligence, it is not competent to the judge to leave the matter to the jury" (r).

(r) Williams J. in Hammack v. White (1862), 11 C. B. N. S. 588, 31 L. J. C. P. 129; Cotton v. Wood (1860), 8 C. B. N. S.

568, 29 L. J. C. P. 333; Wakelin v. L. & S. W. R. Co. (1886), 12 App. Ca. 41.

the majority of the cases are to the contrary. In the opinion of the court in the case of Owens v. Railroad Co. (88 N. C. 506), the authorities are reveiwed and this subject discussed. See Railroad Co. v. Gladman, 15 Wall. 401; Indianapolis etc. R. Co. v. Horst, 93 U. S. 291. The rule is stated by the court in Hickley v. Railroad Co. (120 Mass. 262), as follows: "While, however, the plaintiff is to show that he was in the exercise of due care, and that no negligence of his contributed to the injury, this may be shown by proving the facts and circumstances from which it may fairly be inferred, and if all the circumstances under which an accident took place are put in evidence, and upon an examination of them nothing is found in the conduct of the plaintiff to which negligence can be fairly imputed, the mere absence of fault may justify the jury in finding due care on his part. See Mayo v. Boston & Maine Railroad, 104 Mass. 137. But, if there is only a partial disclosure of the facts, and no evidence is offered showing the conduct of the party injured in regard to matters specially requiring care on his part, the data for such an instance is not sufficient. It can only be warranted when circumstances are shown which fairly indicate care or exclude the idea of negligence on his part. Crafts v. Boston, 109 Mass. 519." Followed in Texas & N. O. R. Co. v. Crowder, 63 Tex. 504. See Barber v. Essex, 27 Vt. 62; Ribble v. Starrat, 83 Mich. 140; 47 N. W. Rep. 244; Strand v. Chicago & W. M. Ry. Co., 67 Mich. 380; 34 N. W. Rep. 712; Lesaw v. Maine Cent. R. Co., 77 Me. 85; Haws v. Burlington, etc. Ry. Co., 64 Ia. 315; Murphy v. Deane, 101 Mass. 455; Benson v. Titcomb, 72 Me. 31; McCully v. Clarke, 40 Pa. St. 399; Burns v. Chicago etc. R. Co., 69 Ia. 450; 28 Am. & Eng. R. Cas. 409; 58 Am. Rep. 227; Hart v. Hudson River Bridge Co., 80 N. Y. 622; Smith v. Boston Gas Co., 129 Mass. 313; Street Ry. Co. v. Nothenius, 40 Ohio St. 376; 19 Am. & Eng. R. Cas. 191; Johnson v. Hudson R. R. Co., 20 N. Y. 65; 75 Am. Dec. 375; Tolman v. Syracuse etc. R. Co., 98 N. Y. 198; 23 Am. & Eng. R. Cas. 313; 50 Am. Rep. 649; Adams v. Young, 44 Ohio St. 80; 58 Am. Rep. 789; Lee v. Troy Cit. Gas Co., 98 N. Y. 115; Cassidy v. Angel, 12 R. I. 447; 34 Am. Rep. 790; Pennsylvania R. Co. v. Weber, 76

Nothing can be inferred, for example, from the bare fact that a foot-passenger is knocked down by a carriage in a place where they have an equal right to be, or by a train at a level crossing (s). Those who pass and repass in frequented roads are bound to use due care, be it on foot or on horseback, or with carriages: and before one can complain of another, he must show wherein care was wanting. "When the balance is even as to which party is in fault, the one who relies upon the negligence of the other is bound to turn the scale" (t). It cannot be assumed, in the absence of all explanation, that a train ran over a man more than the man ran against the train (u). If the carriage was being driven furiously, or on the wrong side of the road, that is another matter. But the addition of an ambiguous circumstance will not do.

Thus in Cotton v. Wood (v), the plaintiff's wife, having safely crossed in front of an omnibus, was startled by some other carriage, and ran back; the driver had seen her pass, and then turned round to speak to the conductor, so that he did not see her return in time to pull up and avoid mischief. The omnibus was on its right side and going at a moderate pace. Here there was no evidence of negligence on the part of the defendant, the owner of the omnibus (x). His servants, on the plaintiff's own showing, had not done anything inconsistent with due care. There was no proof that the driver turned round to speak to the conductor otherwise than for a lawful or necessary purpose, or had any reason to apprehend that somebody would run

(8) Wakelin v. L. & S. W. R. Co., last

note.

45.

(t) Erle C. J., Cotton v. Wood, note (r). (u) Lord Halsbury, 12 App. Ca. at p.

(v) See note (r) above.

(x) It would be convenient if one could in these running-down cases on land personify the vehicle, like a ship.

Pa. St. 157; 18 Am. Rep. 407; Schum v. Pennsylvania R. Co., 107 Pa. St. 8; 52 Am. Rep. 468; Stepp v. Chicago etc. R. Co., 85 Mo. 225; Ruffner v. Cincinnati etc. R. Co., 34 Ohio St. 96; Hinckley v. Cape Cod R. Co., 120 Mass. 257.