35
Ind.App. 312. At 329.
Original
Opinion of January 27, 1905, Reported at: 35 Ind.App. 312.
Petition overruled.
ROBY
J. Robinson, P. J., Myers and Black, JJ., concur. Comstock
C. J., and Wiley, J., dissent.
ROBY
J.
Appellant's
learned counsel have filed a brief in support of the petition
for rehearing, in which they state their position with
earnestness and unusual candor. The legal propositions
heretofore expressed are not controverted, but a line of
argument is presented which is entitled to more than passing
attention.
16.
Negligence justifying the recovery of damages by one thereby
injured must be unmixed negligence. No legal proposition is
more firmly established, and nothing herein held or said in
fact or effect questions or militates against the doctrine.
The salient point of the decision is that the question
whether or not the appellee was contributorily negligent was
a mixed one of law and fact properly submitted to and tried
by the jury.
17. Against this conclusion counsel protest in
terms as follows (including capitals): "The Courts are
COMPETENT to establish adequate and consistent rules of
conduct. Jurors are always selected for their monumental
ignorance of the subject-matter of dispute. Who ever heard of
bookkeepers being called to try a bank case, insurance men to
try an insurance case, any one who knows anything about
railroading to try a railroad case? No One. In this case, as
an example, the conduct of this motorman is submitted to men
who have absolutely no conception of the duties, the
responsibilities or the adversities of a motorman. Of course
they condemn him, for the reason that nine out of ten juries
set aside any will or contract submitted to them, because
they think they can do the business better than the man that
made it. The bar generally recognize that jury trials are
farces, and they look to the courts to give them sane and
reasonable rules of living--fixed rules--so that people may
have some idea of their rights from cases previously decided,
without having to go to law all the time and meet an
ever-changing line of decisions." The standard by which
the conduct of the appellee is to be measured is that of
ordinary care--"that degree of care and foresight which
a discreet and cautious individual would or ought to use if
the whole loss and risk were to be his own exclusively."
This is not a case of bookkeeping, insurance or railroading,
but one as to the conduct of ordinary men, such men as jurors
are presumed to be, and relative to which they are experts
exactly as the argument indicates that they should be.
18. The
scope of the argument is broader, however, than the
illustration. It amounts to an assault upon the system of
trial by jury. Jurors are ignorant, trial by jury is a farce
ergo the courts should encroach upon the function
heretofore assigned to them in American and English
jurisprudence. Such encroachment was long since foreseen.
"It is the most transcendent privilege which any subject
can enjoy or wish for, that he can not be
affected either in his property, his liberty, or his person,
but by the unanimous consent of twelve of his neighbors and
equals. A constitution that I may venture to affirm has,
under Providence, secured the just liberties of this nation
for a long succession of ages. And, therefore, a celebrated
French writer, who concludes that because Rome, Sparta, and
Carthage had lost their liberties, therefore those of England
in time must perish, should have recollected that Rome,
Sparta, and Carthage, at the time when their liberties were
lost, were strangers to the trial by jury. Great as this
eulogium may seem, it is no more than this admirable
constitution, when traced to its principles, will be found in
sober reason to deserve. The impartial administration of
justice, which secures both our persons and our properties,
is the great end of civil society. But if that be entirely
entrusted to the magistracy, a select body of men, and those
generally selected by the prince or such as enjoy the highest
offices in the state, their decisions, in spite of their own
natural integrity, will have frequently an involuntary bias
toward those of their own rank and dignity; it is not to be
expected from human nature that the few should be
always attentive to the interests and good of the
many. On the other hand, if the power of judicature were
placed at random in the hands of the multitude, their
decisions would be wild and capricious, and a new rule of
action would be every day established in our courts. It is
wisely, therefore, ordered that the principles and the axioms
of law, which are general propositions, flowing from
abstracted reason, and not accommodated to times and men,
should be deposited in the breasts of the judges, to be
occasionally applied to such facts as come properly,
ascertained before...
