I have no hesitancy in concurring in paragraphs one, two, three and four of the syllabus, and in the statement of law contained in the opinion. My dissent is from the action of the court in treating its conclusion from conflicting evidence that defendant was negligent as though such *Page 530 negligence had been found by the trier of the issues of fact. Just the contrary is the fact.
In two places in the opinion are found statements indicating that the defendant admitted that it had not exercised ordinary or reasonable care. Of course if the defendant had made any such admission, the court would have been fully justified in instructing a verdict for the plaintiff for such damages as were proven, but even that would not justify taking from the jury the right to assess the damages. However, there was no such admission. On the contrary, the whole effort of the defendant was directed toward showing that it had exercised due care and that the damage to the plaintiff's property occurred notwithstanding such care. The defendant placed four witnesses on the stand, who testified to the circumstances under which the work was done and how it had been done, and why it was done in that way. It is true the plaintiff with that "ex post facto wisdom" suggests certain things that should have been done, but quoting again from the opinion, those things "can hardly furnish a fair rule by which to determine the propriety of what has been done." Certainly, the ex post facto views of the plaintiff should not be hardened into a rule of law by which to judge the defendant's conduct.
This case is not predicated upon the doing or failing to do a specific act which the law has declared to be negligent. It is not claimed that any act or failure to act was negligence per se. It is the ordinary case of a claim of failure to exercise ordinary care. In 38 American Jurisprudence, 1051, Section 346, it is said:
"Ordinary care is that degree of care which a person of reasonable prudence would exercise under a given state of facts. Before legal liability for conceded damages can be imposed upon a defendant, the court must inquire and determine the character of duty *Page 531 which the law, under the facts, imposed upon the defendant as the basis of liability. As a result, the legal duty or the standard of human conduct under any given circumstances must be declared by the court as a preliminary to the submission of the case to the jury. Whether, under proper instructions, the standard of care which should have been exercised was exercised is a question of fact for the jury to be determined from their knowledge of mankind and of how persons of reasonable prudence usually deport themselves in relation to their surroundings. Possessed of a yardstick with which the law presumes them to be familiar — the reasonably prudent man — the jury apply it to the conduct in question and determine whether it measures up to that standard."
It is for the jury and not for the court to apply the yardstick and to determine the credibility of the witnesses.
In the same volume (38 American Jurisprudence) at page 1041, Section 344, it is also stated: "Generally, whether a particular act constitutes negligence is a mixed question of law for the court and fact for the jury, and negligence cases in which a nonsuit may be allowed or a verdict may be directed are exceptional." If directing a nonsuit is the exception in such cases, certainly, directing a verdict or entering a judgment for the plaintiff upon whom the burden of proof rests should be rare indeed.
In addition to deciding the issue of negligence, the court decided the issue of damages and assessed the full amount claimed against the defendant as though the defendant had conceded the amount to be correct. There was no such admission. The jury was under no duty to accept the testimony of the plaintiff's witnesses as to the extent of the damage. *Page 532
For these reasons, I dissent from the conclusion reached by my associates. In my opinion, this judgment should be reversed and the cause remanded for further proceedings according to law.