The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-11-12
WHEN THE JURY
IS THE JUDGE
Discussion of Jury's Province
by Associate Justice
Ball0u.

/
opinion is by Associate Justice Ballou-
The facts in the case are told in the
| opinion, which follows:
OPINION OF THE COURT BY
| BALLOU, j.
| This is an action for damages for
negligentIy causing the death OF the
nIaintiff's son who was killed near the
/ transfer point called Pawaa junction
on the evening of June /, 1909 YER
dict was rendered against the defend
ant for $500. The only exceptions
brought before this court are those re-
Iating to the refusal of the trial judge
to direct a verdict in favor OF the de-
PENDANT and afterwards to render
Judgment for the defendant non OBJ
stante Veredicto.
The circumstances of the accident
appear from the evidence to be as fol-
/ lows: At about nine o'clock on the
evening in question, the night being
dark, plaintiff, a Japanese, and his
/ family were returning from Honolulu
To their home at Waialae. The family
/ comprised the plaintiff, his wife and
! three children. They rode from Homo
| lulu to Pawaa junction in King
street car and at the junction attempt
ed to transfer to the Waialae car
which was standing on a parallel
track For some reason, the evidence
/ of which is in dispute, only the eldest
son, a boy of nearly nine years named
! Omoto Kyofu, was on the Waialae car
/ when il started. Apparently realizing
! that he was separated from his pa
! rents he stepped on the running board
! of the moving car and either jumped
or fell to the ground, striking upon
his back and shoulder outside the rails
of the track Immediately makai but
/ sufficiently near to be struck by
passing car. The King street car
started soon after the Waialae car,
following it at distance of about one
hundred feet on the parallel track in
the same direction. The motorman
/ had received a bell signal to step at
Artesian street and slowed down. He
then glanced around, saw passenger
lump off, and without stopping or re-
ceiving any second signal from the
conductor increased his speed again.
i He did not see the PROSTATE form OF
the boy, although a passenger on the
Waialae car, looking back, saw 1t
quite plainly by the headlight OF the
King street car. Neither the motor
man nor the conductor attached any
significance to the slight jar they felt
nor could they definitely locate its time
with regard to the slowing up. The
car did not stop until passengers from
the Waialae car came running back
shouting. The boy had been dragged
some distance and was picked up bad
ly crushed and dead.
Defendants motions for a directed
oI-Ea 70
veredicto are substantially that the
clear and uncontradicted evidence, ca
pable of only one construction and in
ference, showed no negligence on the
part of the defendant, but did show
contributory negligence on the part Of
both the deceased child and his pa
rents, and further that the death of
the child might have resulted from a.
cause for which the defendant was not
responsible.
Many principles of law applicable to
this case have been considered in
Dong Chong " Rapid Transit Co., Is
Haw., 272, and Ferreira V. Rapid Tran
sit Co, Is Haw. 615. While there has
been some discussion as to whether
the existence of negligence in par
ticular case is in its ultimate analysis
; a question of law or fact, there is no
doubt of the propriety of leaving this
question to the jury. A clear expos1-
ton of the rule in such cases is the
one laid down by the Supreme Court OF
the United States in case where the
trial court had given the following
instruction to the jury:
lyon fix the standard for reasonable,
prudent and cautious men under the
circumstances of the case as you find
them, according to your judgment and
experience of what that class of men
do under these circumstances, and
then test the conduct involved~and try
it by that standard; and neither the
Judge who tries the case nor any other
person can supply you with the critic
rion of judgment by any opinion he
may have on that subject"
In upholding this instruction MT
Justice Lamar said:
''But it seems to us that the in
struction was correct, as an abstract
principle of law, and was also applica-
BILE to the facts brought out at the
, trial of the case. There is no fixed
standard in the law by which court
is enabled to arbitrarily say in every
case what conduct shall be considered
reasonable and prudent, and what
shall constitute ordinary care, under
any and all circumstances. The terms
ordinary care reasonable prudence,
and such like terms, as applied to the
conduct and affairs of men, have a
= relative significance, and cannot be ar
bitrarily defined. What may be deem
| ed ordinary care in one case, may, I'M
der different surroundings and circum-
stances, be gross negligence. The
policy of the law has relegated the
determination of such questions to the
jury. under proper instructions from
the court. It is their province to note
the special circumstances and sur
roundings of each particular case. and
: then say whether the conduct of the
! parties in that case was such as would
be expected of reasonable, prudent
men. under a similar state of affairs
When a given state of facts is such
y that reasonable men may fairly differ
upon the question as to whether there
\ was negligence or not, the determine
ton of the matter is for the jury. Il
is only where the facts are such that