Page:Harvard Law Review Volume 12.djvu/478

458 a track ten feet in front of an express train in full sight running sixty miles an hour, he is liable, or he cannot recover, again as matter of law, supposing these to be all the facts in the case. What new question of fact is introduced if the place of firing is something half way between a prairie and a crowded street, or if the express train is two hundred, one hundred, or fifty yards away? I do not wish to repeat arguments which I published long ago, and which have been more or less quoted in leading text-books. I only wish to insist that false reasons and false analogies shall not be relied upon for daily practice. It is so easy to accept the phrase "there is no evidence of negligence," and thence to infer, as the English House of Lords has inferred, as Professor Thayer infers in his admirable Preliminary Treatise on Evidence which has appeared since these words were written, that the question is the same in kind as any other question whether there is evidence of a fact.

When we rule on evidence of negligence we are ruling on a standard of conduct, a standard which we hold the parties bound to know beforehand, and which in theory is always the same upon the same facts and not a matter dependent upon the whim of the particular jury or the eloquence of the particular advocate. And I may be permitted to observe that, referring once more to history, similar questions originally were, and to some extent still are, dealt with as questions of law. It was and is so on the question of probable cause in malicious prosecution. It was so on the question of necessaries for an infant. It was so in questions of what is reasonable, as—a reasonable fine, convenient time, seasonable time, reasonable time, reasonable notice of dishonor. It is so in regard to the remoteness of damage in an action of contract. Originally in malicious prosecution, probable cause, instead of being negatived in the declaration, was pleaded by the defendant, and the court passed upon the sufficiency of the cause alleged. In the famous case of Weaver v.