No question is raised as to the care exercised by the plaintiff. There are decided cases to the effect that negligence may properly be inferred against common carriers from the mere happening of an accident, such as the overturning of a stage-coach, or a car getting on the track of a railway; but this is a doctrine altogether too broad to be sustained, and it has been expressly overruled in cases of high authority. Shearman Redfield on Negligence, s. 280, notes 3, 4.
Negligence is a fact for the plaintiff to prove by a preponderance of the evidence; a fact for the jury to find or not, without any presumption of law one way or the other. Bundy v. Hyde, 50 N.H. 116, 122; State v. Hodge,50 N.H. 510; Gray v. Jackson, 51 N.H. 9, 12-15, 36, 37; Bickford v. Dane,58 N.H. 185. And the authorities are numerous which hold that a mere scintilla of evidence is not sufficient, but there must be distinct affirmative evidence of the existence of negligence in order to sustain the burden of proof. Cotton v. Wood, 8 *Page 614 C. B. (N.S.) 568, 571; Railroad v. Goodman, 62 Pa. 329, 338; Bachelder v. Heagan, 18 Me. 32; Tourtellot v. Rosebrook, 11 Met. 460; Losee v. Buchanan,51 N.Y. 476; McCully v. Clarke, 40 Pa. 399; Chicago v. Major, 18 Ill. 349; Hammack v. White, 11 C. B. (N.S.) 588; Holmes v. Mather, L. R. 10 Ex. 261; Ellis v. Railway Co., L. R. 9 C. P. 551; Burton v. Railroad Co., 4 Harr. (Del.) 252. Judges are not required to submit a case to the jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury to proceed in finding a verdict in favor of the party introducing such evidence. Ryder v. Wombwell, L. R. 4 Ex. 39. Decided cases may be found where it is held that if there is a scintilla of evidence in support of a case, the judge is bound to leave it to the jury; but the decisions have established a more reasonable rule, to wit, that, before the evidence is left to the jury, there is or may be in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed. CLIFFORD, J., in Commissioners c. v. Clark, 94 U.S. 278, 284; Giblin v. McMullen, L. R. 2 P. C. App. 317, 335; Ryder v. Wombwell, L. R. 4 Ex. 32; Improvement Co. v. Munson, 14 Wall. 442; Pleasants v. Fant, 22 Wall. 120; Parks v. Ross, 11 How. 373; Merchants' Bank v. State Bank, 10 Wall. 637; Hickman v. Jones, 9 Wall. 201.
Of course there is no such preliminary question for the judge, as whether he, sitting as a referee or other tribunal in the place of a jury to determine the question of ultimate liability, would find the fact to be the one way or the other, but whether the evidence submitted by the party on whom the burden of proof rests might reasonably and properly lead the jury, in the absence of any explanatory or rebutting evidence, to conclude that the allegation of negligence is sustained.
These considerations have required us to examine the matters of fact involved in the defendants' first exception; and upon such examination we are not prepared to say there was no evidence upon which a jury might properly find a verdict for the plaintiff, seeking to charge the defendants upon the ground of negligence. We cannot infer that a jury might not properly and reasonably conclude that there was want of due care in failing to secure the rails at the joint so that the truck might not climb the rails; nor that the defendants were not in fault for being unprovided with a pinch-bar; nor that they had not sufficient time and sufficient force within which and with which to remove the van from the highway before the accident occurred.
The first exception, therefore, is not sustained, and the motion for a nonsuit was properly denied.
The second exception relates to the refusal of the court to instruct the jury that "if the conductor and those under him honestly thought they could not move the car above the highway until the men had come from Berlin Mills to assist them (even if the fact were that they could *Page 615 have so moved it), they were justified in not trying to move it until the help had come. And if they waited because they honestly believed they could not do it until more help had come, it is no proof of negligence or fault on the part of the defendants that they waited." Upon this point the court charged the jury as follows: "A man is not guilty of negligence for not doing what he cannot do. If you find that these persons honestly believed they could not move the car without help, and you believe they exercised ordinary care and prudence in that judgment, they are not guilty." These expressions contain an accurate statement of the law, and were sufficiently favorable to the defendants. The second exception is overruled.
The defendants made no other special request for instructions, but, at the conclusion of the charge, excepted to it generally, without any specification of error or request for any modification. The 54th rule of court requires that "all exceptions to the charge of the judge shall be considered as waived, unless taken and reduced to writing before the jury retire." The object of the rule and its propriety are obvious. Its purpose is to give the presiding judge an opportunity to correct any errors into which he may inadvertently fall in making an oral statement of the law. It is not ordinarily practicable for the court, during the progress of a trial by jury, to prepare with care and precision a written statement of the law applicable to the case, nor to delay the trial for the purpose of examining books and authorities. The duties of the bench and the bar are to some extent reciprocal. If the judge makes a mistake, and counsel perceiving it do not call his attention to it, pointing out an error which he may instantly correct, a verdict will not be disturbed on account of the error. The defendants' general exception to the charge must be regarded as waived. Moore v. Ross, 11 N.H. 547, 557; Deming v. Foster, 42 N.H. 165, 177; Cooper v. Grand Trunk Railway, 49 N.H. 209, 213; Craig v. Gerrish, ante, p. 513; Leach v. Woods, 14 Pick. 461; Ford v. Monroe, 20 Wend. 210. It is proper, however, to observe, that having examined the extended report of the charge (which has been furnished us), we have failed to discover the errors which the defendants' counsel have now, for the first time, suggested.
Judgment on the verdict.
CLARK, J., did not sit: the others concurred.