matches-question whether act was within scope of watchman's authority); Willey V. Boston Electric Light Co., 168 Mass. 40; s. c. 37 L. R. A. 723; 46 N. E. Rep. 395 (failure to cut electric-light wires running into cut-off box on pole after insulation has been burned off by lightning); Drennan V. Grady, 167 Mass. 415; s. c. 45 N. E. Rep. 741 (injury to customer in falling through trap-door while coming from rear of defendant's saloon); Coles v. Revere, 181 Mass. 175; s. c. 63 N. E. Rep. 430 (injury caused by a horse becoming frightened at object in highway); Smith v. Wildes, 143 Mass. 556; s. c. 3 N. E. Rep. 744 (injury to blind person by falling into unguarded pit-fall in sidewalk); Bueck v. Lindsay, 65 Mich. 105; s. c. 8 West. Rep. 150 (injury to a horse by stepping on a dragging chain); Huffman v. Adams (Mich.), 2 Det. Leg. N. 267; s. c. 64 N. W. Rep. 7 (permitting plaintiff to drive high-spirited horse in old harness without check-rein); Lauritsen v. American Bridge Co., 87 Minn. 518; s. c. 92 N. W. Rep. 475 (injury to licensee in using moving scaffold); Engel V. Breitkreitz, 59 Minn. 423; s. c. 40 N. W. Rep. 519 (injury from falling of straw-carrier by breaking of rope); State v. Slevin, 93 Mo. 253; s. c. 12 West. Rep. 89; 6 S. W. Rep. 68 (whether a guardian was negligent in making loans of trust funds); Moore v. St. Louis Wire-Mill Co., 55 Mo. App. 491 (failure to observe break in guard for keeping persons from slipping into lime-pit); McClelland v. Scroggin, 48 Neb. 141; s. c. 66 N. W. Rep. 1123 (dumping ashes and live coals in stock yard, where engine was being operated, during high wind which scattered straw about the yard); Pierce v. Jackson, 65 N. H. 121; s. c. 18 Atl. Rep. 319 (whether reasonable skill and diligence were used by a sheriff in making a levy); Cumming v. T. A. Gillespie Co., 62 N. J. L. 370; s. c. 5 Am. Neg. Rep. 399; 41 Atl. Rep. 693, 868 (one-half of highway rendered impassable by excavation; guarded by two red lights only, one at each end of safe part of road); Excelsior Electric Co. v. Sweet, 57 N. J. 224; s. c. 48 Am. & Eng. Corp Cas. 196; 30 Atl. Rep. 553 (suspending electric lamp by threestrand manila rope); Mullen V. Glens Falls, 11 App. Div. (N. Y.) 275; s. c. 42 N. Y. Supp. 113 (moving steam-roller on street without warning to persons travelling thereon); Fechtman v. Huber, 10 App. Div. (N. Y.) 624; s. c. 41 N.. Y. Supp. 791 (hotel employé holding. a customer's horse and failing properly to shield it from injury); Schmeer v. Gaslight Co., 147 N. Y.. 529; s. c. 30 L. R. A. 653; 70 N. Y. St. Rep. 92; 42 N. E. Rep. 202 (turning on gas for a tenant of an apartment-house without proper precautions as to gas escaping into other apartments); Jung v. Starin, 12. Misc. (N. Y.) 362; s. c. 33 N. Y. Supp. 650 (tug signalling its intention to cross the bows of another boat while the hawser and its tows are concealed from the view of the latter); Meeker v. Smith, 84 App. Div. (N. Y.) 111; s. c. 81 N. Y. Supp. 1067 (whether there was neligence in construction of place of amusement); Barrett v. Lake Ontario Beach Imp. Co., 174 N. Y. 310; s. c. 66 N. E. Rep. 968; 61 L. R. A. 829; rev'g s. c. 74 N. Y. Supp. 301 (whether there was negligence in the construction of a public tobogganslide); Williams v. Hays, 157 N. Y. 541; s. c. 52 N. E. Rep. 589; 43 L. R. A. 253; 5 Am. Neg. Rep. 435; rev'g s. c. 37 N. Y. Supp. 708; 73 N. Y. St. Rep. 382; 2 App. Div. (N. Y.) 183 (failure of mate of vessel to resort to strong measures to obtain command of ship where captain had become mentally deranged); Dawson v. Sloan, 49 N. Y. Super. 304 (injury by slipping into elevator-well. through open door in the dark); Brugher v. Bucktenkirch, 29 App. Div. (N. Y.) 342; s. c. 51 N. Y. Supp. 464 (failure of landlord to furnish light for dark hallway, across which steps were constructed); Tobin v. Manhattan Sav. Inst., 52 N. Y. St. Rep. 942; s. c. 23 N. Y. Supp. 1165 (payment of draft or check); Continental Nat. Bank v. Tradesmen's Nat. Bank, 36 App. Div. (N. Y.) 112; s. c. 55 N. Y. Supp. 545; 16 Bkg. L. J. 43; 9 Am. & Eng. Corp. Cas. (N. S.) 478 (payment by bank of raised draft drawn upon it by one of its correspondents); Rouillon v. Wilson, 29 App. Div. (N. Y.) 307; s. c. 51 N. Y. Supp. 430 (injury to tenant from defective condition of premises, of which landlord had knowledge); Schluchtner v. Straeffer, 30 App. Div. (N. Y.) 623; s. c. 51. ARTICLE III. WHEN NEGLIGENCE A MIXED QUESTION OF LAW AND SECTION 7408. Statement of doctrine. FACT. SECTION 7409. Illustrations of doctrine. § 7408. Statement of Doctrine.-Negligence may be said to be either a question of law for the court or a question of fact for the jury, according to the circumstances in each particular case; but the line separating these two divisions is not well defined, and there N. Y. Supp. 554 (injuries inflicted on driver by another driver); Hurley v. New York &c. Brew. Co., 13 App. Div. (N. Y.) 167; s. c. 43 N. Y. Supp. 259 (failure to supply heavy truck with brake); Locke v. Waldron, 75 App. Div. (N. Y.) 152; s. c. 77 N. Y. Supp. 405 (injury caused by felling large tree on highway, when it could not be caused to fall in any other direction); Blaustein v. Guindon, 83 Hun (N. Y.) 5; s. c. 64 N. Y. St. Rep. 194; 31 N. Y. Supp. 559 (injury caused by rolling heavy hogsheads from truck onto sidewalk without warning to pedestrians); Geitelsohn v. Citizens' Sav. Bank, 19 Misc. (N. Y.) 422; s. c. 44 N. Y. Supp. 89; s. c. aff'd, 20 Misc. (N. Y.) 84; 45 N. Y. Supp. 90 (bank paying deposit to one not the owner of the pass-book, who satisfactorily answered all questions required by the rules of the bank); Hurley v. New York &c. Brew. Co., 13 App. Div. (N. Y.) 167; s. c. 43 N. Y. Supp. 259 (injury to street-car passenger by driver of truck colliding with car, by driving rapidly into street without looking to see whether car was approaching); Redmond v. Maitland, 23 App. Div. (N. Y.) 194; s. c. 49 N. Y. Supp. 128 (driving on a race-track with a drag and four horses and colliding with a driver speeding his horse); Crowley v. Palem, 65 How. Pr. (N. Y.) 435 (injury and death to pedestrian from frightened horse on street, which had become frightened and ran away from same cause on preceding day); Clark v. Crimmins, 32 N. Y. St. Rep. 978; s. c. 10 N. Y. Supp. 868 (injury from loose beam lying on bridge); Merritt v. Fitzgibbons, 29 Hun (N. Y.) 634 (injury to pedestrian by horse driven upon sidewalk); Coxhead v. Johnson, 20 App. Div. (N. Y.) 605; s. c. 47 N. Y. Supp. 389 (injury by stepping on Con moving rope in highway at place other than street-crossing); nelly v. Boothby Hotel Co., 190 Pa. St. 553; s. c. 42 Atl. Rep. 1024 (injury from hot water accumulated from overflow from an exhaustwell); Schilling v. Abernethy, 112 Pa. St. 437; s. c. 3 Cent. Rep. 168; 3 Atl. Rep. 792 (injury to tenant's son by falling of wall, of defective condition of which landlord had notice); Bucci v. Waterman, R. I. -; s. c. 54 Atl. Rep. 1059 (ejecting child from moving vehicle); Texas Consol. &c. Assn. v. Dubli Compress &c. Co. (Tex. Civ. App.), 38 S. W. Rep. 404 (no off. rep.) (whether due diligence was exercised to discover fraud practiced upon a corporation to induce it to convey all its property, and due diligence exercised to recover the property after discovery of the fraud); Markham v. Houston &c. Nav. Co., 73 Tex. 247; s. c. 11 S. W. Rep. 131 (injury to steam-tug from rope left across stream on dark night); Butts v. National Exch. Bank, 72 S. W. Rep. 1083 (injury from objects falling on highway); Moses v. Port Townsend &c. R. Co., 5 Wash. 595; s. c. 32 Pac. Rep. 488 (confining horses on board floor after they have been in cars for several days); Black v. Milwaukee St. R. Co., 89 Wis. 371; s. c. 27 L. R. A. 365; 61 N. W. Rep. 1101 (omitting to place guard-wires between trolley and telephone wires); Nyback v. Champagne Lumber Co., 109 Fed. Rep. 732; s. c. 48 C. C. A. 632 (in-O jury from stepping into hole in floor of defendant's sawmill); Hawes v. Warren, 119 Fed. Rep. 978 (injury by fire caused by alleged negligence of defendant in installing electric motor and its appliances); Barnes v. Western Union Tel. Co., 120 Fed. Rep. 550 (injury from alleged negligent delivery of telegram). is a middle ground out of which has grown the doctrine of mixed law and fact, under which it is the province of the jury to find the facts in a particular case, and of the court to instruct the jury as to the effect of these facts upon the case in hand.1 If the facts amount in law to a breach of duty by the defendant toward the plaintiff, the plaintiff's case is established, unless the plaintiff is also in fault and has 'thereby contributed to his own injury. But in the great majority of cases the facts are not such that the court may say as a matter of law either that the plaintiff has succeeded or has failed in making out his case. This is so from the fact that the courts have comparatively little opportunity to define the duties of the parties; and, for the same reason, it is eminently proper that the degree of care demanded of persons in various situations should be determined by the triers of the facts. Sometimes the court can do little more than instruct the jury in the abstract, as, that "Negligence is the omission to do something which a reasonably prudent man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do." With such instruction for their guidance, it is the province of the jury to determine whether the parties in the particular case have so acted as to absolve themselves from negligence; and the conclusion is to be deduced from the evidence of what is customary for persons to do under similar circumstances, and by the judgment of the jurors as to what a person of ordinary prudence, similarly situated, ought to do. Two factors V. 1 New Orleans &c. R. Co. Thomas, 60 Fed. Rep. 379; s. c. 23 U. S. App. 37; Thompson v. Northern Pac. R. Co., 93 Fed. Rep. 384; s. c. 35 C. C. A. 357; Richardson v. Swift, 96 Fed. Rep. 699; s. c. 37 C. C. A. 557 (where an employé in a packing-house was taken from his accustomed work and put to feeding a sausage-machine at which he had had no experience; and, seeing that the sausage was not feeding properly, he put his hand on the sausage to force it down; but, the meat having fed into the machine, leaving a crust on the top, his hand went into the machine and was injured, such crust being of occasional occurrence, it was held a mixed question of law and fact whether the master was negligent in failing to inform plaintiff of such fact); Pennsylvania Co. v. Marion, 104 Ind. 239; s. c. 2 West. Rep. 237 (it is upon the facts established in each case that, in the end, the law must declare whether negligence was or was not imputable); Pittsburg &c. R. Co. v. Spencer, 98 Ind. 186 (a question of negligence is ordinarily a mixed one of law and fact; but when the facts are found, then they are legal consequences and constitute purely a question of law for the court); South Covington &c. St. R. Co. v. Ware, 84 Ky. 267; s. c. 1 S. W. Rep. 492 (holding that it is a question for the jury, under proper instructions, whether the plaintiff brought injury on himself by becoming frightened at an occurrence not reasonably calculated to alarm a reasonably prudent man); Hunter v. Pelham Mills, 52 S. C. 279; s. c. 29 S. E. Rep. 727. 2 Railroad Co. v. Stout, 17 Wall. (U. S.) 657, 664. 3 Blyth V. Birmingham WaterWorks Co., 11 Exch. 781, 784; Potter v. Chicago R. Co., 46 Iowa 399. enter into the question of law and fact: first, whether the particular act has been performed or omitted; second, whether the performance or omission of such act was a legal duty, the first of which is a question of fact, the second a question of law.* § 7409. Illustrations of Doctrine.-Whether a place is a public highway has been held to be a mixed question of law and fact, in `an action against a railway company for death by negligence; and the jury in such a case should be instructed as to what constitutes a public highway. So, where a child strayed upon a railroad-track through an opening in the right-of-way fence, and was injured, the question whether the fence was sufficient, under a statute, was a mixed question of law and fact. The same may be said concerning the question as to what is a reasonable time, except where the facts are few, simple and undisputed. If, in an action by an employé, it is set up in defense that the injury was caused by a fellow servant, the court should define the relation of fellow servants, and then it is for the jury to determine whether the employés in question come within the definition.8 'Nolan v. New York &c. R. Co., 53 Conn. 461; s. c. 1 N. Eng. Rep. 826; Killian v. Augusta &c. R. Co., 79 Ga. 234; s. c. 4 S. E. Rep. 165; Central &c. Co. v. Kitchens, 83 Ga. 83; s. c. 9 S. E. Rep. 827; Western Wheel Works v. Stachnick, 102 Ill. App. 420; Indianapolis &c. R. Co. v. Watson, 114 Ind. 20; s. c. 13 West. Rep. 332; 15 N. E. Rep. 824; St. Louis &c. R. Co. v. Irwin, 37 Kan. 701; s. c. 16 Pac, Rep. 146 (holding that it is a mixed question of law and fact whether an employé who was injured by defendant's machine acted with ordinary care); Donnelly v. Booth Bros. &c. Granite Co., 90 Me. 110; s. c. 37 Atl. Rep. 874 (mixed question of law and fact whether it is the duty of the master or of the servant to construct an appliance to be used by the servant); Dorr v. Harkness, 49 N. J. L. 571; s. c. 10 Atl. Rep. 400; Pittsburgh &c. R. Co. v. Kane (Pa.), 5 Cent. Rep. 909; Baltimore &c. R. Co. v. McKenzie, 81 Va. 71; Nash v. Richmond &c. R. Co., 82 Va. 55; Norfolk &c. R. Co. v. Burg, 84 Va. 63; s. c. 4 S. E. Rep. 21. 5 Illinois Cent. R. Co. v. Chicago Title &c. Co., 79 Ill. App. 623. Ludtke v. Lake Shore &c. R. Co., 24 Ohio C. C. 120. Bacon v. Harris, 15 R. I. 599; s. c. 4 N. Eng. Rep. 923; 10 Atl. Rep. 647. 8 Wilson v. Charleston &c. R. Co., 51 S. C. 79; s. c. 28 S. E. Rep. 91; 9 Am. & Eng. R. Cas. (N. S.) 211. 7411. Wife cannot maintain action 7413. Joint action by husband and 7414. Right of wife to sue for per SECTION 7419. In actions against telegraph companies. 7420. Right of action against common carrier of goods is presumptively in consignee. 7421. How where third person owns the goods or has an interest in them. 7422. When right of action against sonal injuries without join- 7423. Circumstances in which con- 7415. When husband not a proper to wife. party in action for injuries 7424. When right of action is in either consignee or consignor. 7416. In case husband and wife are separated or divorced. 7417. In case wife is supporting herself by independent busi ness. 7418. In case of injuries to infants. 7425. Right of action by the carrier for the torts of third per sons causing loss or injury to goods. 7426. Parties plaintiff in other cases. § 7411. Wife Cannot Maintain Action for Injuries to Husband Not Resulting in Death.-In the case of injuries to the husband, the husband and wife cannot join as plaintiffs in an action for damages therefor. Neither can the wife sue for the loss of her husband's wages, nor for nursing him, nor for medicine furnished and rendered necessary by his injuries.2 § 7412. In Case of Injuries to Wife, Two Causes of Action Arise at Common Law.-In case of injuries to the wife, two separate causes 1 Monroe V. Mapels, 1 Root (Conn.) 422. 2 Welch v. Morrison, 9 Ohio Dec. 852; s. c. 17 Wkly. Law Bul. 370. |