The justice at the circuit was clearly right in refusing to nonsuit the plaintiff, and permitting the cause to go to the jury.
It by no means necessarily follows, because there is no conflict in the testimony, that the court is to decide the issue between the parties as a question of law. The fact of negligence is very seldom established by such direct and positive evidence that it can be taken from the consideration of the jury and pronounced upon as matter of law. On the contrary, it is almost always to be deduced as an inference of fact from several facts and circumstances disclosed by the testimony, after their connection and relation to the matter in issue have been traced and their weight and force considered. In such cases the inference cannot be made without the intervention of a jury, although all the witnesses agree in their statements or there be but one statement which is consistent throughout. Presumptions of fact, from their very nature, are not strictly objects of legal science, like presumptions of law. That the care exercised by the plaintiff at the time of the injury, and the negligence of the defendant, were both questions for the jury to determine, cannot admit of any doubt.
It is not true, I apprehend, as claimed by the defendant's counsel, that a corporation of this description, when it has taken all the steps necessary to authorize it to use a common highway for its plank road, acquires the same exclusive right to the land over which such highway passes, and to its use and occupation while engaged in constructing its road, that it does to the lands of individuals acquired for the same purpose. It can acquire no greater right in the highway than the public possess, which is a mere easement, and that not for the purpose of excluding the public or *Page 534 interrupting their enjoyment of the way, but for the purpose of aiding and facilitating travel and the transportation of property.
As a necessary incident, the corporation acquires the right to grade its track by excavation and embankment, if necessary, and to take the necessary possession to enable it to do so, and to lay down and secure the plank. Still its right is not exclusive until the road is finished, and until that is done the public have the right of free passage, and the corporation is bound so to exercise its rights as not unnecessarily to interfere with this right of the public. During this time the rights and duties of the corporation towards the public are analogous to those of public officers repairing streets and highways. While exercising its own rights it owes a duty to the public also, and has no right to place and continue dangerous obstructions in parts of the highway where persons of ordinary prudence do or will be likely to travel, without some guard or notice to warn them of their danger; and this results, I think, from the nature of the right acquired, the uses for which it is intended and the necessities of the case.
The plaintiff was, therefore, lawfully there, and was required to exercise ordinary care and prudence only, according to the condition and circumstances in which he was placed.
Such being the relative rights and duties of the parties there was no error in the charge of the judge to the jury, nor in the refusal to charge as requested.
The law was correctly laid down and the facts properly submitted, nor is the verdict without evidence to support it. The judgment must therefore be affirmed.
Judgment affirmed. *Page 535