dissented, and gave the following opinion: —
I cannot concur in the opinion, which sustains the doctrine advanced at the trial, and overrules these exceptions. I am fearful, that, by one of the rulings, injustice may have been done by the verdict, which “is examinable here,” so far as the genuineness of its legal elements are involved.
“The plaintiff’s counsel requested the Court to instruct the jury, that a person had a right to be in the street, whether there is a sidewalk or not, and that such fact is not evidence from which the jury can legally infer negligence, and the instruction was given.”
Whether the female plaintiff had the right to be in the street, under the circumstances, was one of the principal questions of fact to be settled by the jury; but that fact was wholly withdrawn from their consideration, and decided in the affirmative by the Court; consequently, after this instruction, the plaintiff stood recta in curia, protected by the judicial mantle from any imputation of not having been in the exercise of ordinary care.
The burden of proof was on the plaintiff, who requested this instruction,' to show, that she was in the exercise of ordinary care. The evidence discloses, that she was walking along in the carriage-path, in the same direction in which the *337defendant’s horse and sleigh were passing; and, in so walking, was she exercising ordinary care ? The answer to this question, would seem to depend upon the attendant circumstances disclosed at the trial, which were a plank sidewalk, her walking along and not across the street, and the defendant’s horse and sleigh approaching in the rear. Now, under such circumstances, to stand still, and suffer one’s self to be run over, Without any attempt to avoid a collision, cannot be said to be an exercise of ordinary care; yet, under such a state of facts, from aught that appears, (for upon this point the case finds the evidence to be conflicting,) the plaintiff invoked the ruling which was given, to the effect, that from a certain fact simultaneous with other facts, the jury could not legally infer negligence.
The Judge in this particular having encroached upon the province of the jury, the former instruction, that they must find that the plaintiff was in the exercise of ordinary care, was either overruled, contradicted, or wholly withdrawn from the jury; whereas the requested instruction should have been refused, and the jury permitted, under the former instruction, to infer negligence, or otherwise, from all the facts disclosed, bearing upon that point.
If it be contended, that the ruling embraced only the abstract proposition, that “ a person had a right to be in the street whether there is a sidewalk or not,” my answer is, that even an abstract proposition, if it be calculated to mislead the jury, should never be enunciated by the presiding Judge. Hopkins v. Fowler, 39 Maine, 568.
But, as an abstract proposition, the ruling was not correct, for no “person” has legal right to be in the street, regardless of the laws of the road, as defined and regulated by statute; whereas the instruction implies that he has such right, independent of others’ rights, or the attendant circumstances.
It has been also contended, that a foot passenger has a right to substitute the carriage path for the sidewalk, and from that fact alone negligence cannot be inferred. Assuming such a proposition to be correct, still it is not this case, *338for here that fact was not alone. But the question naturally arises, what authority has a Judge to take one “ isolated fact,” by himself isolated and severed from all other facts in the case, and to instruct the jury that from such fact alone no inference can be drawn ? If such is to be the established rule of law, then a party would have the right to have a separate ruling upon every distinct fact disclosed by the evidence, when neither, standing alone, might be the subject matter for an inference, but, when taken and considered together, would carry instant conviction. For instance, in the case at bar, the fact that there was a sidewalk, and the plaintiff’s walking along the street, were circumstances, which, when considered and weighed with other facts, about which there was conflicting testimony, might have authorized the jury to find negligence, but this chain of facts and circumstances was broken by the presiding Judge.
The cases cited from 6 Cush. 530, citing 5 Carr & Paine, 379, to my apprehension, have but little or no bearing upon this question; if any, more in favor than against sustaining these exceptions. The first authority merely settles that foot passengers are not confined to particular crossings; and the verdict was set aside for want of ordinary care on the part of the plaintiff in crossing from the sidewalk into the street.
In the latter, the foot path had been shown to have been “in a bad state;” and the defence set up was ruled to be inadmissible under the defendant’s plea. But the dictum of the Judge, was only to the effect, that the footman under the circumstances, having a right to walk in the carriage-way, “was entitled to the exercise of reasonable care on the part of persons driving carriages along it.” And notwithstanding the defendant was not permitted, under his plea, to show the plaintiff’s conduct, as a full defence, he was so permitted in mitigation of damages.