ILLINOIS CENT. R. CO. v. FOLEY et al., 53 F. 459

CALDWELL, Circuit Judge, (after stating the facts.) It is assigned for error that the court refused, at the close of the whole evidence, to give a peremptory instruction to the jury to find a verdict for the defendant. The case should not have been withdrawn from the jury unless the conclusion followed, as matter of law, that no recovery could be had, upon any view which could be properly taken of; the facts the evidence tended to establish. Railway Co. v. Cox, 145 U. S. 593, 606, 12 Sup. Ct Rep. 905.

We think the evidence tended to establish that the bridge was a part of the station grounds, and used as such by the railroad company, and by those having business with the company or its trains at the station, and that the company knew, or ought to have known, that shippers of stock, accompanying its freight trains, would have occasion to go upon the bridge, in goiug around the train to look after their stock, while the engine was taking water at the tank.

If these were the facts, the company was undoubtedly guilty of negligence in not planking the bridge on the north side of the main track and placing proper guard rails around it, or taking other suitable means to guard against accidents like that which instantly killed Kelley and came near killing his helper. The charge contained a very clear and accurate statement of the rules of law applicable to the case; and the court properly left it to the jury to say, whether, applying these rules to the facts and circumstances of the casé, the defendant had been guilty of negligence.

It was emphatically a case where the question of negligence was one for the determination of the jury, under proper instructions from the court. That the evidence tended to establish negligence was enough to make it the duty of the court to submit that issue to the jury. Where negligence may be fairly deduced or inferred from proved or conceded facts, the case must be left to the jury. Neither this nor any other court can set aside the verdict of a jury simply because the court would have reached a conclusion different from that of the jury, . upon the facts. To do so would be to usurp the functions of the jury.

In a case involving questions of negligence, the supreme court, speaking by Mr. Justice Miller, said: . - “But we think these are questions for the jury to determine. We see no reason, so long as the jury system is the law of 1bo land, and the jury is made the tribunal to decide disputed questions of fact, why it should not decide such questions as these, as well as others.-’ Jones v. Railroad Co., 128 U. S. 443-445, 9 Sup. Ct. Rep. 118. And in the case of Railway Co. v. Ives, 144 U. S. 408, 417, 12 Sup. Ct. Rep. 679, the court, speaking by Mr.

Justice Lamar, says: “When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ev.er considered one of law, for the court.” In the case of Railroad Co. v.

Stout, 17 Wall. 657, 663, 664, we think the evidence of negligence was not so strong as it is in this case, and the court said: “The evidence Is not strong, and f he negligence is slight, but wo are not able to say that there is not evidence sufficient to justify the verdict. We are not called upon to weigh, to measure, to balance the evidence, or to ascertain how we should have decided, if acting as jurors. * * * Certain facts we may suppose to be clearly established, from which one sensible, impartial man would infer that proper care had not been used, and that negligence existed.

Another mail, equally sensible and equally impartial, would infer that proper care had been used, and that there was no negligence. It is this class of cases, and those akin to it, that the law commits to the decision of a jury.

Twelve men of the average of the community, comprising men of education and men of little education, men of learning and men whose learning coiisists only in what they have themselves seen and heard, — the merchant, the mechanic, the farmer, the laborer, — tlu so sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given, it is the great effort of the law to obtain.

It is assumed that twelve men know more of the common affairs of life than does one man; that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge. In no class of cases can this practical experience he more wisely applied than in that we are considering. We find accordingly, although not uniform or harmonious, that the authorities justify us in holding, in the case before us, that, although the facts are undisputed, it is for the jury, and not for the judges, to determine whether proper care was given, or whether they establish negligence.” And see Railway Co. v.

Jackson, L. R. 3 App. Cas. 193, 47 Law J. C. P. 303; Railway Co. v. Slattery, L. R. 3 App. Cas. 1155. In Pollock on Torts, (page 381,) the learned author says: “The tendency of modem rulings of courts of appeal has been, if no-t to enlarge the province of the jury, to a rrest the process of curtailing it.” It would serve no useful purpose to set out in detail all the evidence in the record, and point out wherein it is sufficient to support the verdict of the jury.

It is enough to say that we have carefully considered it, and that, in the light of the authorities we have cited, the question of negligence was properly left to the consideration of the jury, whose verdict is not without evidence to support it. The judgment of the circuit court is therefore affirmed.