Page:Harvard Law Review Volume 4.djvu/184

168 l68 HARVARD LAW REVIEW, reasonable ; as, for example, when the question for the jury itself is one of reasonable conduct. In such a case, the judges do not undertake to set aside the verdict because their own opinion of what is reasonable in the conduct on trial differs from the jury's.^ The question for the court, it will be observed, is not whether the conduct ultimately in question, e.g., that of a party injured in a railway accident, was reasonable, but whether the jury's conduct is reasonable in holding it to be so ; and the test is whether a reason- able person could, upon the evidence, entertain the jury's opinion. Can the conduct which the jury are judging, reasonably be thought reasonable? Is that a permissible view ? We might anticipate, as was said before in speaking of the de- murrer upon evidence, that this line would often be overstepped. It often has been. It is the line which was under discussion in an important modern suit for libel,^ when, in considering the power of the court in such a case, on a motion in arrest of judgment, Lord Penzance insisted that a court could not take it from the jury, if the publication was reasonably capable of a libellous construc- tion. But it was laid down by Lord Blackburn that the court was to judge for itself; and he added, " It seems to me that when the court come to decide whether a particular set of words, pub- lished under particular circumstances, are or are not Hbellous, they have to decide a very different question from that which they have to decide when determining whether another tribunal, whether a jury or another set of judges, might not unreasonably hold such words to be libellous." ^ That this discrimination was, probably, not fully attended to in a great many of the cases where, in one way or another, facts have been referred to the court I have already said. The point may be further illustrated by two cases on the subject of necessaries for an infant. Formerly in such cases the plaintiff, in reply to the plea of infancy, put upon the record the facts which were thought to show that what had been furnished were necessaries ; this gave the opportunity for a demurrer. Nowadays these facts are not pleaded, and the question goes to the jury. Under the former practice the parties got simply the court's opinion ; now they get the jury's, which may be a very different matter. The jury's 1 Stackus V. R. R. Co., 79 N. Y. 464. 2 Capital and Counties Bank v. Henty, 7 App. Cas. 741, s. c. 31 W. R. 157. 8 This distinction is of fundamental importance in constitutional law. Harv. Law Rev. i. 92, note; Powell v. Pa., 127 U. S. 678.