Page:Federal Reporter, 1st Series, Volume 4.djvu/54

 eû FSDËBAL BEFOBTlSIi. �In New Jersey this is held to be a question of fact for the jury to decide. The court says : "It must, from its very nature, be a question of fact rather than of law. The reasonableness or unreasonableness of the regulation is properly for the con- sideration, not of the court, but of the jury." State v. Ovcr- ton, 4 Zab. e35-e41 ; Munis lîailroad Co. v. Ayres, 5 Dutch. 393. �In Bass v. Railroad, 36 Wis. 450, it is said "to partake of the character of debatable ground between court and jury, and is so properly held to be a mixed question of fact and law; and it is always proper to submit the question, under instructions, to the jury." Page 459. And in Dayy. Owen, 5 Mich. 520, it is said: "In pleading, it is sufficient to state the rule or regulation, that plaintiff cornes within it, and to aver its reasonableness. It is not necessary to spread upon the record the facts, which may be more or less numerous, that the party relies on to establish its reasonableness. "It is otherwise where the defendant refuses to carry the plaintiff generally. In sueh cases, the facts constituting his excuse, if he have one, must appear on the record, that the court may determine whether it be good or bad. But the reasonable- ness of a rule or regulation is a mixed question of law and fact, to be found by the jury on the trial, under the instruc- tions of the court. It may depend on a variety of cireum- Btances, and may not improperly be said to be in itself a fact to be dedueed from other facts. It is not to be inferred from the rule or regulation itself, but must be shown positively." Page 527. And it was held in that case that the question would not be determined on demurrer. �Demurrer overruled. �Note. See Thomp. Carr. Pass. 306. ����