BRONSON v. OAKES et al., 76 F. 734

CALDWELL, Circuit Judge, after stating the case as above, delivered the opinion of the court. It is well settled that what constitutes negligence is a question of fact for the jury, and it does not cease to be such although the facts are undisputed, for that would be to deprive a suitor of his constitutional right to have the material facts in his case tried by a jury.

Whether, upon the conceded facts in this case, the act of the defendant was negligent, is the principal and ultimate fact in the case, and the decision of this fact, like any other disputed fact in a case, rests with the jury, and not with the court. The question of contributory negligence is likewise one of fact for the jury. There is no statute or law which defines the quality of every human action, and stamps it in advance as either negligent or prudent.

The law cannot anticipate the conduct and actions of men in all the varying and multiplied relations they sustain to each other, and declare in advance what shall be esteemed prudent and what negligent. The facts and circumstances of this case as they are disclosed by the complaint differ from the facts and circumstances of any case that ever occurred before, or any case that is likely to occur in the future.

It is manifest, therefore, that if the court should decide as a matter of law that these facts and circumstances do or do not constitute negligence in law, it would be a case where the decision made the law, and not the law the decision. And hence the doctrine is firmly established that these questions of negligence are questions of fact for the jury to determine, and not questions of law for the court; and this is the rule where the facts are conceded as well as where they are disputed.

The only exception to this rule is found in that class of cases where a party has admittedly failed in the performance of a duty imposed by law, or where the act was done in pursuance of some requirement of the law. In this class of cases, when the conceded facts bring the case within the terms of the law, the court applies the law and declares the result. In Railroad Co. v. Stout, 17 Wall. 657, 664, the supreme court said 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 established negligence.” In Railroad Co. v.

Ives, 144 U. S. 408, 417, 12 Sup. Ct. 679, 682, the court said: “There is no fixed standard in the law by which the court is expected to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. * * * The policy of the law has relegated the determination of such questions to the jury, -under proper instructions from the court.

It is their province to note the special circumstances and surroundings ot each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men under a similar state of affairs.” In answer to the contention that the plaintiff in that case had been guilty of such contributory negligence as would preclude a recovery, the court said (page 428, 144 U. S., and page 687, 12 Sup.

Ct.): “It is earnestly insisted that, although the defendant may have been guilty of negligence in the management of its train, which caused the accident, yet the evidence in the case given by the plaintiff’s own witnesses shows that the deceased himself was so negligent in the premises that, but for such contributory negligence on his part, the accident would not have happened. * * * To this argument several -answers might be given, but the main reason why it is unsound is this: As the queslion of negligence on the pari, of the defendant was one of fact for the jury to determine under all the circumstances of the case, and under proper instructions from the court, so, also, the question of whether there was negligence in the deceased, which was the proximate cause of the injury, was likewise a question of fact for the jury to determine, under like rules.” In Jones v.

Railroad Co., 128 U. S. 443, 445, 9 Sup. Ct. 118, the lower court instructed the jury to render a verdict tor the defendant upon the ground that the plaintiff had been guilty of contributory negligence, but the supreme court reversed the judgment, saying: “But we think these questions lof negligence] are for the jury to determine.

We see no reason, so long as the jury system is the law of the 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.” It does not follow, however, that because it is the exclusive province of the jury to determine the question of negligence, that in no state of facts can the court withdraw the case from the consideration of the jury. Although the rule as to when the case is one for the jury and not for the court has been variously stated, the various statements have the same meaning.

The rule is frequently laid down in these terms: That when the evidence in any given case is conflicting, or the facts disputed, or where the facts are of such a character that different minds might draw different conclusions from them, the case must be left to the jury for their determination. Another statement of the rule is that a case should not be withdrawn from the jury unless the conclusion follows as a matter of law that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish.

Probably the most satisfactory statement of the rule, and the one easiest to comprehend and apply (Scott v. City of New Orleans, 75 Fed. 373, 377), is that given by the supreme court in Railroad Co. v. Ives, 144 U. S. 417, 12 Sup. Ct. 683, where it is thus stated: “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 ever considered one of law for the courts.” And in such cases the court merely declares the evidence is insufficient in law because insufficient in fact. When, therefore, it is said that a given act does or does not constitute negligence in law, the statement means no more than that in the judgment of all reasonable men — not judges alone, for it concerns a fact, and not a question of law — it would be esteemed such.

When it can be affirmed that all reasonable men would agree as to the quality of

an act in respect of its being either negligent or prudent, the court may give effect to such consensus of opinion, and direct a verdict in accordance therewith. The direction is given, not because it is the judge’s opinion alone, hut because the judge is able to say that it is also the opinion that all reasonable men would entertain of the question. If there is doubt as to whether all reasonable men would draw the same conclusion from the evidence, then the question must be submitted to the 12 reasonable men appointed by the constitution 'to determine' disputed or doubtful questions of fact.

The rule on the subject is well stated and illustrated by Judge Cooley in delivering the opinion of the court in Railway Co. v. Van Steinburg, 17 Mich. 99, 118.

The learned judge said: “The case, .however, must he a very clear one which would justify the court in taking upon itself this responsibility [withdrawing the ease from the jury], for, when the judge decides that a want of due care is not shown, he necessarily fixes in his own mind the standard of ordinary prudence, and, measuring the plaintiff’s conduct by that, turns him out of court upon his opinion of what a reasonably prudent man ought to have done under the circumstances. He thus makes his own opinion of what would be generally regarded as prudence a definite rule of law.

It is quite possible that, if the same question of prudence were submitted to a jury collected from the different occupations of society, and perhaps better competent to judge of the common opinion, he might find them differing with him as to the ordinary standard of proper care. The next judge trying a similar case may also be of a different opinion, and, because the case is not clear, hold that to be a question of fact which the first has ruled to be one of law.

Indeed, I think the cases are not so numerous as has been sometimes supposed in which ■ a judge could feel at liberty to take the question of the plaintiff’s negligence away from the jury. . This question was very fully and carefully considered by the supreme court of .Connecticut in Beers v. Railroad Co., 19 Conn. 566, and a rule was laid down, which has since been followed in that state, and is very succinctly stated in Park v. O’Brien, 23 Conn. 347, as follows: ‘The question as to the existence of negligence or a want of ordinary care is one of a complex character.

The inquiry, not only as to its existence, but whether it contributed with negligence on. the part of another to produce a particular effect, is much more complicated.

As to both, they present, from their very nature, a- question, not of law, but of fact, depending on the peculiar circumstances of each case, which cir- • eumstances are only evidential of the principal fact, — that of negligence or its effects, — and are tb be compared and weighed by 'the jury, the tribunal whose province it is to find facts, not by any artificial rules, but by the ordinary principles of reasoning; and such principal fact must be found by them before the court can taire cognizance of it, and pronounce upon its legal effect.’ It is a mistake, therefore, to say, as is sometimes said, that when the facts are undisputed the question of negligence is necessarily one of law.

This is generally true only of that class .of cases where a party has failed in the performance of a clear legal duty.” Applying these well-settled rules to this case, the court is of opinion the complaint states a case upon which the plaintiff is entitled to go to the-jury. The defendants were under no legal obligation to provide vestibuled trains for their passengers, but, having done so, it was their duty to maintain them in a reasonably safe condition. Railway Co. v. Glover (Ga.) 18 S. E. 406, 414.

The purpose of the vestibuled cars is'to add to the comfort, convenience, and safety of passengers, more particularly while passing from one car ■ to another. The presence of such an appliance on a train is a proclamation by the company to the passenger that it has provided him a safe means of passing from one car to another, and an invitation for him to use it as his • convenience or necessity may require.

Whether, having provided vestibuled cars for their passenger trains, it was negligence in the defendants to leave the vestibule connection between two cars without light, and the outside door of the vestibule open without a guard rail or other protection ' while the train was running rapidly on a dark night, is a question of'fact for the jury to determine. And if, upon the facts set out in the complaint, they should find that it was negligence, no court could disturb their finding.

The next contention of the defendants in error is that,'conceding they were guilty of negligence, the plaintiff in error was guilty of contributory negligence which relieves them from liability. The act of the plaintiff in error in leaving the car door open to light him through the vestibule on his return would seem to be one of caution rather than one of negligence. It was not the physical cause of the injury, and in no manner contributed to it.

The plaintiff in error supposed the dim light which shone through the windows of the car was a light shining through the doorway he wished to enter, and, while proceeding in the exercise of due care towards that light, he was precipitated out of the open door of the vestibule. The optical illusion under which he was laboring was to him a palpable fact until the disillusion came. Such an optical illusion would not ordinarily be anticipated by a man of common prudence, nor is. it probable that the illusion would be dispelled until some palpable physical fact brought it to his attention.

His action, therefore, having any relation to the accident, was not the result of a negliJ gent act on his part, but the result of an optical illusion, for which he was in no manner responsible, and which cannot be characterized as a negligent act. Moreover, that optical illusion would have' been harmless but for the negligent act of the defendants. The vestibule was intended to prevent injury to the passenger while passing through it, from optical illusions as well as from any other cause.

In other words, it was designed to prevent every kind of injury that could be prevented by keeping the vestibule in a safe and proper condition. The plaintiff in error was not bound to anticipate the particular act of negligence on the part of the defendants which occasioned the accident. Hutchinson v. Railway Co., 32 Minn. 398, 21 N. W. 212; Weller v. Railway Co. (Mo.) 23 S. W. 1061; Railway Co. v. Sharp, 27 U. S. App. 334, 11 C. C. A. 337, and 63 Fed. 532; Sturdivant v. Railroad Co. (Tex. Civ. App.) 27 S. W. 170; Dickinson v. Railway Co., 53 Mich. 43, 18 N. W. 553; Low v. Railway Co., 72 Me. 313, 321. In Low v.

Railway Co., supra, in considering the question .of contributory negligence under circumstances which make the utterance of the court on that subject quite applicable here, the court said: “Defendants’ counsel put tlie dilemma tiras: ‘If the night is light enough to see the gangway, no railing or light is necessary to enable a person to avoid it, and, if the night is too dark to allow of its being seen, then a person groping round in the dark, and unconsciously walking into it, is guilty of such negligence as to preclude him from recovering.’ But, if this plausible statement is absolutely correct, there never can be an accident of this description for which tho injured party can recover.

The idea seems to be that there is no necessity for any precaution on the part of the wharf owners, because constant vigilance on the part of those who come there when it is light enough to see the danger will enable them to avoid it; and, duty or no duty, they must not come without a light in the nighttime, or they will be set down as wanting in ordinary care, and so forfeit their right to protection or compensation. The argument establishes, if anything, too much. The questions are not of a character to be disposed of by a little neat logic. They are rather, as remarked by the court in Elliott v.

Pray, 10 Allen, 384, ‘questions which can be best determined by practical, men on a view of all the facts and circumstances bearing on the issue.’ No such sweeping syllogism as this presented by defendants’ counsel can be adopted as a rule of decision.

A man may be deceived, by a half light, such as is described in the testimony here, and, using due care himself, may meet with an accident by falling into a chasm where he was not bound to expect to find one unguarded; and in such ease, if he is not a mere licensee or trespasser, and the owner of the premises owes him a duty, he is entitled to his remedy.” In the case at bar it is not contended that the defendants in error did not owe the plaintiff in error the positive duty of keeping the vestibule in safe condition. In Dickinson v.

Railway Co., supra, the court said; “But he was not negligent in failing to look ahead, unless he had reason to anticipate some such danger; and, if we are correct in what we have already said, he had no such reason. He had a right to assume that the defendant would perform its duty in guarding the safety of its passengers and servants; and it was only because it had failed to do so in this instance that the danger was encountered.

The plaintiff had no warning * * * until the bins were so near that it was impossible to avoid striking them, and why should he have looked for dangers whose existence he could not have anticipated?” Without pursuing the subject further, we think, upon the aver-ments of the complaint, the plaintiff in error was not guilty of contributory negligence which was a proximate cause of his injury; but this, like the question of the negligence of the defendants in error, is a question for the jury. In Railway Co. v. Kellogg, 94 U.

S. 469, the supreme court said: “The rule is that what is the proximate cause of an injury is ordinarily for the juiy. It is not a question of science, or of legal knowledge.

It is to be determined as a fact, in view of the circumstances of fact attending it. * * * But the inquiry must be answered in accordance with common understanding.” And, referring to the refinements of the schoolmen upon the question, the court said; “Such refinements are too minute for rules of social conduct.” The judgment of the circuit court is reversed, and the. cause remanded, with instructions to overrule the demurrer and grant a new trial.