It is true, in many cases, that when the facts are undisputed, the effect of them is for the judgment of the court. That is true in that class of cases when the existence of such facts comes in question, rather than when deductions or inferences are to be made from the facts (and see Kansas Pac. R. Co. v. Richardson, 25 Kan. 391). In some cases, too, the necessary inference from the proof is so certain that it may be ruled as a question of law. Certain facts we may suppose to be clearly established from which one sensible, impartial man would infer that proper care had not been used ; another man, equally sensible, equally impartial, would infer that proper care had been used. It is this class of cases and those akin to it that the law commits to the decision of a jury. Twelve men of the average of the community, comprising men of education and of little education, men of learning and men whose learning consists in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer ; these sit together, consult, apply their separate ex periences of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given, it is the final effort of the law to obtain ; Sioux City & P. R. Co. v. Stout, 17 Wall. (U. S.) 663, 21 L. Ed. 745. Although the facts are un disputed, it is for the jury and not for the judge to determine whether proper care was given or whether they established negli gence ; Ohio & M. P. W. Co. v. Collarn, 73 Ind. 261, 38 Am. Rep. 134 ; Brotherton v. Imp. Co., 48 Neb. 563, 67 N. W. 479, 33 L.
R. A. 598, 58 Am. St. Rep. 709.
The terms "ordinary care," "reasonable prudence," and such like terms have a rela tive significance, and cannot be arbitrarily defined; and, when the facts are such that reasonable men differ as to whether there was negligence, the determination of the matter is for the jury; Grand T. R. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485 ; as it is in all cases where the infer ence from the facts is not so plain as to make it a legal conclusion that there was negligence ; Northern P. R. Co. v. Egeland, 163 U. S. 93, 16 Sup. Ct. 975, 41 L. Ed. 82; and it is only where they would draw the same conclusion that it is a question of law for the court ; Texas & P. R. Co. v. Gentry, 163 U. S. 353, 16 Sup. Ct. 1104; 41 L. Ed. 186 ; Southern Pac. Co. v. Burke, 60 Fed. 704, 9 C. C. A. 229, 23 U. S. App. 1; Travelers' Ins. Co. v. Melick, 65 Fed. 181, 12 C. C. A. 544, 27 L. R. A. 629; and a decision of the trial judge on the question is subject to review ; id.
Whether a railroad company should erect guards at car windows is a question for the jury ; New Orleans & C. R. Co. v. Schneider, 60 Fed. 210, 8 C. C. A. 571, 13 U.
S. App. 655 ; so also where a workman, re turning from his work on the train and being ordered by the conductor to jump off at a station when the train was moving about four miles an hour and where the platform was about a foot lower than the car step, jumped and was seriously injured, the ques tion of contributory negligence was for the jury ; Northern P. R. Co. v. Egeland, 163 U. S. 93, 16 Sup. Ct. 975, 41 L. Ed. 82 ; Negli
gence only becomes a question of law to be taken from the jury when the facts are such that fair-minded men can only draw from them the inference that there was no negli gence ; otherwise it is a question fqr the jury under proper instructions ; McDermott v. Severe, 202 U. S. 600, 26 Sup. Ct. 709, 50 L. Ed. 1162 ; nor should a case be withdrawn from the jury unless the conclusion follows as a matter of law that no recovery can be had upon any view which can be properly taken of the facts which the evidence tends to establish ; Kreigh v. Westinghouse, C., K. & Co., 214 U. S. 249, 29 Sup. Ct. 619, 53 L. Ed. 984; where there is uncertainty as to the existence of negligence or contributory neg ligence, whether such uncertainty arises from a conflict of testimony, or because, the facts being undisputed, fair-minded men might honestly draw different conclusions there from, the question is not one of law ; Texas & P. R. Co. v. Harvey, 228 U. S. 319, 33 Sup. Ct. 518, 57 L. Ed. 852.
See Lewis v. R. Co., 13 Am. L. Reg. N. S. 284, where the subject is fully treated and the earlier decisions collected by states.
In actions for negligence the English rule is said to be that the "judge has to say whether any facts have been established from which negligence may be reasonably in ferred; the jurors have to say whether, from those facts, negligence ought to be infer red ;" 3 App. Cas. 197; or better, whether, as reasonable men, they do infer it; Poll. Torts 420.
Contributory Negligence. If the evidence shows that the plaintiff himself was guilty of negligence 'contributing to the injury, there can be no recovery ; Beach, Contrib. Neg. 14. The distinction, however, must be drawn be tween condition and causes, between causa causans and causa sine qua non. The ques tion must always be considered whether the act of the plaintiff had a natural tendency to expose him directly to the danger which resulted in the injury complained of. If it had not, the plaintiffs negligence is not con sidered in law as contributing to the injury. One who sees or could have seen if he had looked, and has the faculties to understand the dangers to which he is exposed, is charg ed with a knowledge of them ; and his fail ure to act on the knowledge as a prudent and cautious man would act under like circum stances, is negligence which, notwithstanding the negligence of the defendant, will defeat a recovery ; Glascock v. R. Co., 73 Cal. 137, 14 Pac. 518. And when it appears that the plaintiff, by the defendant's misconduct; be came frightened, and in endeavoring to es cape the consequence of the defendant's mis conduct, rushed into danger and was injifred, the plaintiff's conduct does not contribute to the injury ; Coulter v. Exp. Co., 56 N. Y. 585. If, through the defendant's negligence, the injured person is placed in a position of peril and confronted with sudden danger, the law does not require him to exercise the same degree of care and caution that it does of a person who has ample •opportunities for the full exercise of his judgment; Dunham T. & W. Co. v. Dandelin, 143 Ill. 409, 32 N.