Provisions contained in a steamship ticket exempting a carrier from liability for losses occasioned by negligence, although such pro visions are valid by the law of the country where the ticket was bought, are unreason able and void as against the public policy of the United States ; The Kensington, 183 U. S. 263, 22 Sup. Ct. 102, 46 L. Ed. 190; The New England, 110 Fed. 415.
By an act of congress of February 13, 1893 (Harter Act), common carriers by sea can not exempt themselves from responsibility for loss or damage arising from the negli gence of their own servants, and any stipu lation for such exemption Is contrary to public policy and void. See HARTER ACT.
Taking precaution after an accident against the future is not to be construed as an admission of responsibility for the Barber A. P. Co. v. Odasz, 60 Fed. 71, 8 C. C. A. 471, 20 U. S. App. 326 ; so a subsequent alteration or repair of the machine which caused an injury is not evidence of negli gence in its original construction; Columbia & P. S. R. Co. v. Hawthorne, 144 U. S. 202, 12 Sup. Ct. 591, 36 L. Ed. 405; Champion Ice Mfg. & C. S. Co. v. Carter, 51 S. W. 16, 21 Ky. L. Rep. 210; Cunningham v. R. Co., 40 Pa. Super. Ct. 212.
Law or fact. It is generally said that the question of negligence is a mixed question of law and fact, to be decided by the court when the facts are undisputed or conclu sively but not to be withdrawn from the jury when the facts are disputed, and the evidence is conflicting; Whart. Negl. § 420; Faris v. Hoberg, 134 Ind. 269, 33 N. E. 1028, 39 Am. St. Rep. 261; see Chaffee v. R. Co., 17 R. I. 658, 24 Atl. 141; Woolwine's Adm'r v. R. Co., 36 W. Va. 329, 15 S. E. 81, 16 L. R. A. 271, 32 Am. St. Rep. 859. In the great majority of cases the question is left to the jury to determine whether the defend ant's conduct was reasonable under the cir cumstances. When a well-recognized legal duty rested upon the defendant, it is usual for the court to define this duty to the jury, and leave to it the question as to whether the defendant fulfilled this duty. More re cently the courts have drawn a distinction between what is evidence of negligence for the jury and what is negligence per se, and therefore a question of law for the court, and the tendency has been rather to increase the number of cases in which the question of negligence is passed upon by the court. In Pennsylvania, when the standard of duty is defined by law, and is the same under all circumstances, and when there has been such an obvious disregard of duty and safety as amounts to misconduct, the courts have withdrawn the case from the consideration of the jury. Thus the Pennsylvania rule of stop, look and listen limits, to a great extent, the province of the jury, i. e. usually the jury
must be satisfied that the plaintiff had met these requirements before the question of defendant's negligence arises. See GRADE CRossING.
It is said to be clear, by most of the au thorities, that when the facts are found, and it is perfectly manifest that a prudent man would or would not do as the defendant has done, the court may rule accordingly, or rather, may direct, the jury to find accord ingly. The same is also true when the law has prescribed the nature of the duty, and also when there exists a well-known prac tice in the community, of a.proper character. In other cases, the inference concerning neg ligence is left to the jury ; Bigelow, Torts 263; Cartico v. R. Co., 35 W. Va. 389, 14 S. E. 12. When the evidence is conflicting, the court should instruct the jury that there would or would not be negligence, accord ingly as they might find the facts; Knight v. R. Co., 110 N. C. 58, 14 S. E. 650.
"When the circumstances of a case are such that the standard of duty is fixed, when the measure of duty is defined by law and is the same under all circumstances, its omission is negligence and may be so de clared by the court. But it is said that when the negligence is clearly defined and palpable, such that no verdict of a jury could make it otherwise, or when there is no controversy as to the facts, and from these it clearly appears what course a per son of ordinary prudence would pursue un der the circumstances, the question of neg ligence is purely one of law." 2 Thomp. Negl. 1236.
"As a general rule, a question whether a party has been guilty of negligence or not, is one of, fact, not of law. Where, how ever, the plaintiff brings action for a neg ligent injury, and the action of the two parties must have concurred to produce it, it devolves upon him to show that he was not himself guilty of negligence ; and if he gives no evidence to establish that fact, the court may properly instruct the jury that they should return a verdict for defendant. Where, however, the question of negligence depends upon a disputed state of facts, or when the facts, though not disputed, are such that different minds might honestly draw different conclusions from them, the court cannot give such positive instruc tions, but must leave the jury to draw their own conclusions upon. the facts, and upon the question of negligence depending upon them. To warrant the court in any case in instructing the jury that the plaintiff was guilty of negligence, the case must be a very clear one against him, and one which would warrant no other inference." Per Cooley, C. J., in Detroit & M. R. Co. v. Van Steinburg, 17 Mich. 99.