Separation of law and fact in United States. the effect of making it safer for the wrong-doer to create a great risk than a small one. Or we may put it thus; that the law does not think so meanly of mankind as to hold it otherwise than a natural and probable consequence of a helpless person being put in danger that some ablebodied person should expose himself to the same danger to effect a rescue. American jurisprudence is exceedingly rich in illustrations of the questions discussed in this chapter, and American cases are constantly, and sometimes very freely, cited and even judicially reviewed (1) in our courts. It may therefore be useful to call attention to the peculiar turn given by legislation in many of the States to the treatment of points of "mixed law and fact." I refer to those States where the judge is forbidden by statute (in some cases by the Constitution of the State) (m) to charge the jury as to matter of fact. Under such a rule the summing-up becomes a categorical enumeration of all the specific inferences of fact which it is open to the jury to find, and which in the opinion of the court would have different legal consequences, together with a statement of those legal consequences as leading to a verdict for the plaintiff or the defendant. And it is the habit of counsel to frame elaborate statements of the propositions of law for which they contend as limiting the admissible findings of fact, or as applicable to the facts which may be found, and to tender them to the court as the proper instructions to be given to the jury. Hence there is an amount of minute discussion beyond what we are accustomed to in (1) E. g. Lord Esher's judgment in The Bernina, 12 P. Div. at pp. 77-82. Cp. per Lord Herschell in Mills v. Armstrong, 13 App. Ca. at p. 10. (m) Stimson, American Statute Law, p. 132, § 605. this country, and it is a matter of great importance, where an appeal is contemplated, to get as little as possible left at large as matter of fact. Thus attempts are frequently made to persuade a court to lay down as matter of law that particular acts are or are not contributory negligence (n). Probably the common American doctrine that the plaintiff has to prove, as a sort of preliminary issue, that he was in the exercise of due care, has its origin in this practice. It is not necessary or proper for an English lawyer to criticize the convenience of a rigid statutory definition of the provinces of judge and jury. But English practitioners consulting the American reports must bear its prevalence in mind, or they may find many things. hardly intelligible, and perhaps even suppose the substantive differences between English and American opinion upon points of pure law to be greater than they really are. (n) For a strong example see Kane v. N. Central R. Co. 128 U. S. 91. 420 CHAPTER XII. Exceptions to general limits of duties of caution. DUTIES OF INSURING SAFETY. In general, those who in person go about an undertaking attended with risk to their neighbours, or set it in motion by the hand of a servant, are answerable for the conduct of that undertaking with diligence proportioned to the apparent risk. To this rule the policy of the law makes exceptions on both sides. As we have seen in the chapter of General Exceptions, men are free to seek their own advantage in the ordinary pursuit of business or uses of property, though a probable or even intended result may be to diminish the profit or convenience of others. We now have to consider the cases where a stricter duty has been imposed. As a matter of history, such cases cannot easily be referred to any definite principle. But the ground on which a rule of strict obligation has been maintained and consolidated by modern authorities is the magnitude of the danger, coupled with the difficulty of proving negligence as the specific cause in the event of the danger having ripened into actual harm. The law might have been content with applying the general standard of reasonable care, in the sense that a reasonable man dealing with a dangerous thing-fire, flood-water, poison, deadly weapons, weights projecting or suspended over a thoroughfare, or whatsoever else it be-will exercise a keener foresight and use more anxious precaution than if it were an object unlikely to cause harm, such as a faggot, or a loaf of bread. A prudent man does not handle a loaded gun or a sharp sword in the same fashion as a stick or a shovel. But the course adopted in England has been to preclude questions of detail by making the duty absolute; or, if we prefer to put it in that form, to consolidate the judgment of fact into an unbending rule of law. The law takes notice that certain things are a source of extraordinary risk, and a man who exposes his neighbour to such risk is held, although his act is not of itself wrongful, to insure his neighbour against any consequent harm not due to some cause beyond human foresight and control. Fletcher. Various particular rules of this kind (now to be re- Rylands v. garded as applications of a more general one) are recognized in our law from early times. The generalization was effected as late as 1868, by the leading case of Rylands v. Fletcher, where the judgment of the Exchequer Chamber delivered by Blackburn J. was adopted in terms by the House of Lords. The nature of the facts in Fletcher v. Rylands, and the question of law raised by them, are for our purpose best shown by the judgment itself (a) :— of Ex. Ch. "It appears from the statement in the case, that the Judgment plaintiff was damaged by his property being flooded by water, which, without any fault on his part, broke out of a reservoir, constructed on the defendants' land by the defendants' orders, and maintained by the defendants. "It appears from the statement in the case, that the coal under the defendants' land had at some remote period been worked out; but this was unknown at the time when the defendants gave directions to erect the (a) L. R. 1 Ex. at p. 278, per Willes, Blackburn, Keating, Mellor, Montague Smith, and Lush JJ. For the statements of fact referred reservoir, and the water in the reservoir would not have escaped from the defendants' land, and no mischief would have been done to the plaintiff, but for this latent defect in the defendants' subsoil. And it further appears that the defendants selected competent engineers and contractors to make their reservoir, and themselves personally continued in total ignorance of what we have called the latent defect in the subsoil; but that these persons employed by them in the course of the work became aware of the existence of the ancient shafts filled up with soil, though they did not know or suspect that they were shafts communicating with old workings. "It is found that the defendants personally were free from all blame, but that in fact proper care and skill was not used by the persons employed by them, to provide for the sufficiency of the reservoir with reference to these shafts. The consequence was that the reservoir when filled with water burst into the shafts, the water flowed down through them into the old workings, and thence into the plaintiff's mine, and there did the mischief. "The plaintiff, though free from all blame on his part, must bear the loss unless he can establish that it was the consequence of some default for which the defendants are responsible. The question of law therefore arises, what is the obligation which the law casts on a person who, like the defendants, lawfully brings on his land something which, though harmless whilst it remains there, will naturally do mischief if it escape out of his land. It is agreed on all hands that he must take care to keep in that which he has brought on the land and keeps there, in order that it may not escape and damage his neighbours; but the question arises whether the duty which the law casts upon him, under such circumstances, is an absolute duty to keep it in at his peril, or is, as the majority of |