only of that class of cases where a party has failed in the performance of a clear legal duty. When the question arises upon a state of facts on which reasonable men may fairly arrive at different conclusions, the fact of negligence cannot be determined until one or the other of those conclusions has been drawn by the jury. The inferences must either be certain and uncontrovertible or they cannot be decided upon by the court." Detroit & M. R. Co. v. Van Steinburg, 17 Mich. 99. And finally see Cox v. Burbridge, 13 Com. B. N. s. 430, 437, infra, where the court decide that it is no evidence of negligence that a child is kicked on the highway by a horse straying there; as to which Erle, C. J., says, "And everybody knows that it is not at all the ordinary habit of a horse to kick a child on a highway." See also Gaynor v. Old Colony R. Co., 100 Mass. 208.1 The principal case, Hammack v. White, was a case in which the court (or at least one of the judges) assumed to know the actual conduct of the prudent man. "It appears," said Erle, C. J., "that the defendant had only bought the horse the day before, and was for the first time trying his new purchase, using the horse in the way he intended to use it. It is said that the defendant was not justified in riding in that place a horse whose temper he was unacquainted with. But I am of opinion that a man is not to be charged with want of caution because he buys a horse without having had any previous experience of him. There must be horses without number ridden every day in London of whom the riders know nothing." The conduct of the prudent man, as thus appears, was plain, and evidence on the point was unnecessary. However, it may be safely surmised that the chief reason for the decision was found more in a conviction that the act of the defendant was proper and prudent per se than that it conformed to any general practice of the community. The general practice might itself be very reprehensible; and it would not be safe to found a rule of law upon its mere existence. The court seem to have taken the ground that it was for them to say whether a careful man, who had regard for the safety of others, would do as the defendant had done; and properly, for there were no elements of difficulty in the case which could be aided by the production of evidence. In this view the question was, what the standard should be rather than what it actually was. Dixon v. Bell differs from Hammack v. White in that the act complained of was one of an isolated kind, as to which no actual practice existed in the community. The question to be decided therefore was, what standard should prevail in such a case. That is, it was like the question which we have presumed to have existed in the mind of the court in Hammack v. White. The duty was something to be prescribed and not proved. It was a question of 1 Where a fact is matter of general knowledge, it seems to be a rule of wide application that the court may take cognizance of it. Upon a question of master and servant, Cockburn, C. J, said: "It is a matter of universal knowledge and experience that in a great city like this persons do not employ their own servants to do repairs to the roofs of their houses or buildings; they employ a builder whose particular business it is to do it. That being a matter of universal practice, and of universal and common knowledge, I think this is a circumstance which the judge ought to take into account in determining whether there is evidence to go to the jury or not." Welfare v. Brighton Ry. Co., L. R. 4 Q. B. 693, 696. public policy, and therefore for the cog- seeing them to be men, he naturally nizance of the court. The doctrine, then, of the cases is, that where the standard is plain and certain (i.e., to put it as we have stated it elsewhere, where it is matter of general cognizance, so as not to require evidence), it is not error for the judge to lay it down, or to say that, if such and such. acts or omissions be proved, the defendant is guilty or not guilty; and a fortiori this is true where the standard has been already defined by law, or where the act is an isolated one, and cannot be aided by evidence. See 7 Am. Law Rev. 654, 655, 658. And when the statement is made, as it often is, that where the facts are found, the question whether they constitute negligence is one of law, it will generally appear, as we have intimated, that the court speak with a case like one of the above before them. Thus in Herring v. Wilmington & Raleigh R. Co., 10 Ired. 402, which was an action for killing one and injuring another of the plaintiff's slaves, the learned court said: "What amounts to negligence is a question of law. . . . The cars were running at the usual hour and at the usual speed, not through a village or over a crossing-place, or turning a point, but upon a straight line, where they could have been seen for more than a mile. The negroes might have been seen at the distance of half a mile. Whether the engineer saw them or not until he was too near to stop does not appear. There is no evidence that he was not in his place and on the look-out. It cannot be inferred from the fact that he made no effort to stop until he got within twenty-five or thirty yards of the negroes, for that is entirely consistent with the supposition that he had seen them for half a mile; because, supposed they would get out of the way before the cars reached them, and might well have continued under this impression until he got near enough to see that they were either drunk or asleep, which he was not bound to foresee; and his being then too near to stop, so as to save them, was their misfortune, not his fault." The standard, it will be observed, was one of general cognizance, and could not have been made more plain by evidence. In concluding this part of the note, it is.proper to remark that as the stand`ard is (ordinarily) that of the prudent man, the requirement of "due care " or "ordinary diligence," and the prohibition of "ordinary negligence" and gross negligence," to use a common set of terms, implies one and the same thing, to wit, the exercise of that degree of care which prudent men exercise, or should exercise, in similar matters. If the defendant's act fall below the standard, he is liable; and degrees of negligence, as applied to liability, are thus effectually cut off. See further, as to the province of the court and jury, Baltimore & O. R. Co. v. State, 36 Md. 366, referring to many cases; Barton v. St. Louis, &c. R. Co., 52 Mo. 253; Pendrill v. Second Ave. R. Co., 34 N. Y. Superior, 481; Dickens v. New York Cent. R. Co., 1 Abb. App. Dec. 504; Keller v. New York Cent. R. Co., 2 Abb. App. Dec. 480; Rudolphy v. Fuchs, 44 How. Pr. 155; Feler v. New York Cent. R. Co., 49 N. Y. 47; Bernhard v. Rensselaer & S. R. Co., 1 Abb. App. Dec. 131; Cook v. New York Cent. R. Co., Ib. 432; Jetter v. New York & H. R. Co., 2 Abb. App. Dec. 458; Willard v. Pinard, 44 Vt. 34; Haskford v. New York & H. R. Co., 43 How. Pr. 222; Schierhold v. North Beach, &c. R. Co., 40 Cal. 447; Smith v. Clark, 3 Lans. 208; Greenleaf v. Illinois, &c. R. Co., 29 Iowa, 14; Jenkins v. Little Miami R. Co., 2 Disney, 49; Eagan v. Fitchburg R. Co., 101 Mass. 315; Maloy v. New York & H. R. Co., 58 Barb. 182; Belton v. Baxter, 2 Sweeny, 339; Johnson v. Bruner, 61 Penn. St. 58; Pennsylvania Canal Co. v. Bentley, 66 Penn. St. 30; Buell v. Chapin, 99 Mass. 594; Quirk v. Holt, Ib. 164; Reynolds v. Hanrahan, 100 Mass. 313; Albert v. Bleecker St. R. Co., 2 Daly, 389; Griggs v. Frankenstein, 14 Minn. 81; Carroll v. Minnesota Val. R. Co., Ib. 57; Kennayde v. Pacific R. Co., 45 Mo. 255; Detroit & M. R. Co. v. Curtis, 23 Wis. 152; French v. Taunton Branch R. Co., 116 Mass. 537; Schienfeldt v. Norris, 115 Mass. 17; Strong v. Connell, Ib. 575; Elkins v. Boston & A. R. Co., Ib. 190; Gee v. Metropolitan Ry. Co., Law R. 8 Q. B. 161. Consult also the valuable contribution of Mr. Holmes on The Theory of Torts, 7 Am. Law Rev. 652. In Presumptions of Negligence. the principal case, Byrne v. Boadle, we have an instance where, from the situation of the parties and the nature of the accident, a legal presumption of negligence is raised against the defendant. The barrel of flour fell out of the window of the defendant's shop; from which it was presumed that the article had been in the custody of the defendant. And as a barrel of flour would not ordinarily fall out of a window when proper care is taken in managing it, there was presumptive evidence of negligence on the part of the defendant. But as it was possible that the defendant was not the author of the injury, or, if he was, that he was not in fact negligent, each of the presumptions was open to rebuttal. But inasmuch as the burden of proof of actionable negligence is upon the plaintiff, cases in which such presumptions are claimed must be narrowly scrutinized. The circumstances (apart from contract) must be exceptional where the plaintiff escapes the common necessity of proving actual negligence. There are, however, such cases; and Byrne v. Boadle is not alone. A similar case went to the Exchequer Chamber about a year later. Scott v. London Dock Co., 3 Hurl & C. 596. In this case the plaintiff proved that while in the discharge of his duties as a custom house officer in front of the defendants' warehouse, in a dock, he was felled to the ground by several bags of sugar falling upon him. The judge at nisi prius directed a verdict for the defendants, on the ground of a want of evidence of negligence. The Court of Excheq uer having granted a rule to set aside the verdict, that decision was sustained on appeal. Erle, C. J., said that the majority of the court had come to the following conclusions: There must be evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care. The learned Chief Justice added that he and Mr. Justice Mellor had been unable to find in the case this reasonable evidence of negligence. (The majority consisted of Crompton, Byles, Blackburn, and Keating, JJ.) In another case, the plaintiff was injured by the fall of a large packingcase belonging to the defendant, while making inquiries for the defendant in the door of a house in which the latter had offices. He had received a push from the defendant's servant, who was watching the packing-case; and immediately the case, which stood against a wall of the house, fell and struck him on the foot. There was no evidence why the packing-case fell, or who placed it against the wall. It was held that the facts showed a prima facie case of negligence. Pigott, B., said that it was true that where the evidence was equally consistent with the existence or non-existence of negligence, there was no question for the jury. (See Cotton v. Wood, 8 Com. B. N. s. 568; Smith v. First National Bank, 99 Mass. 605). But inasmuch as packing cases did not usually fall of themselves, unless there had been some negligence in setting them up, the facts appeared to him to be consistent only with the existence of negligence. Bramwell, B., took the same view. Martin, B., thought that the facts were as consistent with the position that there was no evidence of negligence as the contrary, and that therefore the plaintiff had not made out his case. Briggs v. Oliver, 4 Hurl. & C. 403. In Cox v. Burbridge, 13 Com. B. N. s. 430, the plaintiff, a child, sued for injuries caused by the kick of a horse. It appeared that the horse had been grazing on the highway. The plaintiff was playing in the road, when the horse, which was on the foot-path, kicked him. There was no evidence to show how the horse got to the spot, or that the defendant knew he was there, or that the animal was at all vicious, or that the child had done any thing to irritate him. The case having been left to the jury, a verdict was given for the plaintiff; whereupon a new trial was granted, on the ground of a want of evidence of negligence. Erle, C. J., said that it might be assumed that as between the defendant and the owner of the soil of the highway (which had not been accepted as such), it might be assumed that the horse was trespassing; or, if the way had been a public highway, that the owner might have been proceeded against under the Highway Act. But in considering the claim of the plaintiff against the defendant, the question whether the horse was a trespasser as against the owner of the soil, or whether he was amenable under the statute, had nothing to do with the case. He also thought that there was no evidence of negligence in the fact that the owner of the horse had allowed the animal to go upon the road unattended. He might have been put there by a stranger, or might have escaped from some enclosure without the owner's knowledge. But even if there were negligence, he thought that the plaintiff had not connected himself with the damage complained of. He thought that the well-known distinction was applicable, that the owner of an animal was liable only when the damage done was such as was likely to be caused by the animal, and that the owner knew it. In such cases there was no remedy without proof of the scienter. (See ante, p. 488.) "The owner of a horse," said the learned Chief Justice, "must be taken to know that the animal will stray if not properly secured, and make its way into his neighbor's corn or pasture. For a trespass of that kind the owner is, of course, responsible. But if the horse does something which is quite contrary to his nature, some thing which his owner has no reason to expect he will do, he has the same sort of protection that the owner of a dog has; and everybody knows that it is not at all the ordinary habit of a horse to kick a child on the highway." The other judges took the same view as to the necessity of the proof of a scienter of the viciousness in such a case. So, too, it is held that the mere fact of a man's driving on the wrong side of the road is no evidence of negligence in an action brought against him for running over a person who was crossing the road on foot. Lloyd v. Ogleby, 5 Com. B. N. s. 667. In Welfare v. London & Brighton Railway Co., Law R. 4 Q. B. 693, it was held that no presumption of negligence could be raised from the fact that the plaintiff was injured by the fall of a timber and a roll of zinc from the roof of a portico undergoing repair, under which he was standing. The Chief Justice observed that the only act of negligence that could be suggested in the case was, that the defendants had allowed a person to go upon the roof when it was in an insecure condition or not sufficiently strong to support his weight, so that the plank gave way under the weight of the man passing over it, and that as a consequence the plank fell down and injured the plaintiff. But this was not sufficient. It was incumbent upon the plaintiff to show further that the defendants knew, or had the means of knowing, or were bound to take steps to know, the condition of the roof; and it did not follow that because they knew that the roof needed repairing, they also knew that it would not bear the weight of a man. Another ground taken was, that the person upon the roof had not been shown to be in the employ of the defendant; and upon this ground, and the ground that there was no evidence that the man on the house was negligent, a more recent case before the same court has been distinguished. Kearney v. London & Brighton Railway Co., Law R. 5 Q. B. 411, 413; s. c. Law R. 6 Q. B. 759. In this case the plaintiff was injured by the fall of a brick while passing under a railway bridge extending over the highway. The bridge rested on perpendicular brick walls, having pilasters; and from the top of one of these pilasters the brick fell, shortly after the passing of a train. It was held that these facts raised a presumption of negligence against the defendants. "My own opinion," said Cockburn, C. J., "is, that this is a case to which the principle res ipsa loquitur is applicable, though it is certainly as weak a case as can well be conceived in which that maxim could be taken to apply. But I think the maxim is applicable; and my reason for saying so is this: The company who have constructed this bridge were bound to construct it in a proper manner [there was no evidence, however, that it was not so constructed], and to use all reasonable care and diligence in keeping it in such a state of repair that no damage from its defective condition should occur to those who passed under it, the public having a right to pass under it. Now, we have the fact that a brick falls out of this structure and injures the plaintiff. The proximate cause appears to have been the looseness of the brick, and the vibration of a train passing over the bridge acting upon the defective condition of the brick. It is clear, therefore, that the structure in reference to this brick was out of repair. It is clear that it was incumbent on the |