Page:Harvard Law Review Volume 5.djvu/207

JUDICIAL LEGISLATION. 191 is the broad test of reasonableness, to which the courts turn in any situation for which the parties or the law have failed to pro- vide more specifically. The jury is given the standard of the reasonable man ; it is for them to say whether under all the cir- cumstances that standard has been complied with. But behind this question, which is purely for the jury, there is always the judicial question whether the jury itself has kept within the bounds of reason. This is a mere question of fact, but it is one which the court must answer as a part of its general duty of super- vising the proceedings in court and regulating the action of the jury. Often — in certain classes of cases only too often — it, be- comes the duty of the court to say that the jury has exceeded its bounds, and to declare that the plaintiff or defendant, as the case may be, cannot rationally be held to have performed his legal duty. With every such declaration that the acts in question are, as the phrase is, not merely evidence of negligence, but negligence per se, the legal standard of prudence is to some extent fixed and defined, and the field of the jury is correspondingly narrowed. The broad rule requiring reasonable care is in so far supplanted by the specific rule that the passenger in a railway train must not ride with his elbow out of the window, 1 or remain on the step of the car if there is standing-room inside, 2 or board a slowly moving train if there is an obstruction near by 3 which would make a mis- step dangerous. It is true that the binding effect of such a de- cision is limited to the precise facts of the case, a combination which is not likely to be exactly repeated. But a later case may well contain all its essential features, and so fall within the rule which it lays down. And the process may go farther than this. If in a succession of similar cases the court finds itself repeatedly compelled to set aside the verdicts of juries, it may naturally end by laying down a general rule to dispose of them all. Such are the cases in Pennsylvania which have resulted in the enunciation of a hard-and-fast rule requiring all persons to stop, look, and listen at a railway crossing. 4 The question for the jury is no longer, " Did 1 Todd v. O. C. R. Co., 7 Allen, 207. More correctly, perhaps, beyond the outside line of the car. Georgia Co. v. Underwood, 8 So. Rep. 116 (Ala., 1890). 2 Quinn v. 111. Central R. Co., 51 111. 495. 8 Hunter v. Cooperstown R. Co., 126 N. Y. 18. 4 See R.R. Co. v. Beale, 73 Pa. 504. In Penn. R. Co. v. Aiken, 130 Pa. 380, the rule was said to be " not a rule of evidence, but a rule of law, peremptory, absolute, and unbending;" and in Greenwood v. Phil. R. Co., 124 Pa. 572, it was applied to a hose- carriage on its way to a fire.