Vinton v. Schwab

Redeield, Ch. J. The questions raised in this case upon the trial, and the motion for a new trial, seem to be identical, that is, whether there was any evidence which could fairly have been submitted to the jury ? In regard to questions of negligence, it has often been determined that when the testimony is all in one direction, that is, when all the evidence being taken, as facts, it establishes a clear case of negligence, or when it has no tendency to show any negligence whatever, it may be determined as a question of law by the court, unless some question is made in regard to the credibility of the witnesses from which the testimony comes. But when there is no conflict in the testimony in regard to the particular facts, that will not always make it a mere question of law which the court may determine. If it still rests upon discretion, experience and judgment, it is matter of fact and not of law merely. A man in any situation or business is always bound to conform to the rules and usages which prudent and careful men have established in the conduct of similar business under similar circumstances. And it is negligence to make any important departure from such a course, when it proves more injurious to others than the usual course. All this is matter of fact, however, until it becomes so usiiversally known as to be received as axioms are, by universal consent. This can scarcely be said in regard to pedlers leaving their horses unfastened in the highway. It may be a pretty general practice, but by no means universal, I suppose. And when it is done, it is a departure from the usual course, which is the only safe course in regard to teams ordinarily. And when one, for his own convenience or that of his particular pursuit, chooses to adopt such a departure from the general and safe course, he must be regarded as doing it at his own peril, so far as injury may result to others. Every man is bound sic útero suo, ut alienum non Icedat. And the rule by which he is bound to govern the use of his own is that which is established by the concurrent use of careful and prudent men in that particular business. When a pedler is unacquainted with the habits of his horse, and knows nothing of the amount of travel upon the road, it could be nothing less than rashness to leave his team in the streets [615] tmfastened. But after knowing the habits of the beast more or less, and the probability of there being any one about to pass, it would become a question of judgment and discretion whether he could with safety leave his team in the condition shown in the present case, in regard to the defendant. This will certainly reduce it to a question of fact. And until there are some more definite rules established upon the subject, we do not very well perceive any sufficient guide to enable a court to inform a jury precisely what is sufficient care and watchfulness in such matters^ We do not perceive but the question was properly submitted to the jury, and that being the case, the motion to set aside the verdict and for a new trial was matter of discretion, and no ques* tion of law can be raised in relation to it in this courts Judgment affirmed-.