majority">

The opinion of the Court was delivered by

McIver, A. J.

This case was sent back for a new trial in order that the question (which had been ignored at the first trial) whether the plaintiff was guilty of negligence in signing the bond and mortgage'in question should be determined.

This issue was referred to a jury, who w'ere instructed by the Circuit Judge “that he regarded what was said about the reading of the paper by the Supreme Court not a specific decision on that point, but only an illustration of the degree of diligence required; and if the jury believed the circumstance of the reading of the paper in the first instance, and the inquiries by the plaintiff in the second instance, taken together, to be diligence equivalent to the reading, then they could find as a question before them whether she was guilty of negligence or not.”

This instruction, to which exception was duly taken, as well as the request to charge, which was refused, that the omission by the plaintiff to ask for the reading of the papers on the second occasion *451when they were executed was proof of negligence, we regard as tending to narrow the inquiries which the jury was called upon to make beyond what is contemplated by the law in such cases.

The question whether a person has been guilty of negligence is a mixed question of law and fact, and, as said by Story in his work on Bailments, Section 2, “ is more a matter of fact than of law,” and must be judged of by reference to all the surrounding circumstances. In 2 Kent Com., 561, it is said: “Diligence is a relative term, and it is evident that what would amount to the requisite diligence at one time, in one situation and under one set of circumstances, might not amount to it in another.”

Sherman & Redfield, in their work on Negligence, at page 5, say: “ Culpable negligence is the omission to do something which a reasonable, prudent and honest man would do, or the doing something which such a man would not do, under the circumstances surrounding each particular case.”

We think, therefore, that the minds of the jury should not have been confined to the inquiry whether any particular act was done or omitted, as the doing or the omission of such act under one set of circumstances might be the strongest proof of negligence, while under another set of circumstances such act or omission might afford very slender evidence of negligence. Hence, when, as in this case, there were many other circumstances surrounding the transaction, the jury, after being instructed as to what was negligence, should have been directed to inquire whether, under all the circumstances surrounding the case, the plaintiff was guilty of negligence in signing the bond and mortgage in question.

The judgment of the Circuit Court is set aside and a new trial ordered.

Willard, C. J., and Hashell, A. J., concurred.

Citation profile

How this case has been treated — in progress