On 'Petition for Rehearing.
Roby, J.Appellant’s learned counsel have filed a brief in support of the petition for rehearing, in which they state their position with earnestness and unusual candor. The legal propositions heretofore expressed are not controverted, but a line of argument is presented which is entitled to more than passing attention.
16. Negligence justifying the recovery of damages by one thereby injured must be unmixed negligence. No legal proposition is more firmly established, and nothing herein-held or said in fact or effect questions or militates against the doctrine. The salient point of the decision is that the question whether or not the appellee was contributorily negligent was a mixed one of law and fact properly submitted to and tried by the jury.
*33017. Against this conclusion counsel protest in terms as follows (including capitals) : “The Courts are COMPETENT to- establish adequate and consistent rules of conduct. Jurors are always selected for their monumental ignorance of the subject-matter of dispute. Who ever heard of bookkeepers being called to try a bank case, insurance men to try an insurance case, any one who knows anything about railroading to try a railroad case ? No One. In this case, as an example, the conduct of this motorman is submitted to men who have absolutely no conception of the duties, the responsibilities or the adversities of a motorman. Of course they condemn him, for the reason that nine out of ten juries set aside any will or contract submitted to them, because they think they can do the business better than the man that made it. The bar generally recognize that jury trials are farces, and they look to the courts to give them sane and reasonable rules of living — fixed rules — so that people may have some idea of their rights from cases previously decided, without having to go to law all the time and meet an ever-changing line of decisions.” The standard by which the conduct of the appellee is to be measured is that of ordinary care — “that degree of care and foresight which a discreet and cautious individual would or ought to use if the whole loss and risk were to he his own exclusively.” This is not a case of bookkeeping, insurance or railroading, but one as to the conduct of ordinary men, such men as jurors are presumed to be, and relative to which they are experts exactly as the argument indicates that they should be.
18. The scope of the argument is broader, however, than the illustration. It amounts to an assault upon the system of trial by jury. Jurors are ignorant, trial by jury is a farce, ergo the courts should encroach upon the function heretofore assigned to them in American and English jurisprudence. Such encroachment was long since foreseen. “It is the most transcendent privilege which any subject *331can enjoy or wish for, that he can not he affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals. A constitution that I may venture to affirm has, under Providence, secured the just liberties of this nation for a long succession of ages. And, therefore, a celebrated French writer, who concludes that because Romo, Sparta, and Carthage had lost their liberties, therefore those of England in time must perish, should have recollected that Rome, Sparta, and Carthage, at the time when their liberties were lost, were strangers to the trial by j ury. Great as this eulog'ium may seem, it is no more than this admirable constitution, when traced to its principles, will be found in sober reason to deserve. The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely entrusted to the magistracy, a select body of men, and those generally selected by the prince or such as enjoy the highest offices in the state, their decisions, in spite of their own natural integrity, will have frequently an involuntary bias toward those of their own rank and dignity; it is not to he expected from human nature that the feiv should bo always attentive to the interests and good of the many. On the other hand, if the power of judicature Avere placed at random in the hands of the multitude, their decisions would be Avild and capricious, and a new rule of action Avould bo every day established in our courts. It is Avisely, therefore, ordered that the principles and the axioms of Lxav, which are general propositions, floAving from abstracted reason, and not accommodated to times and men, should bo. deposited in the breasts of the judges, to be occasionally applied to such facts as come properly ascertained before them. For here partiality can have little scope; the law is well known and is the same for all rights and degrees; it follows as a regular conclusion from the premises of fact pre-established. But in settling and adjusting a question of fact, Avhen intrusted to any single *332magistrate, partiality and injustice have an ample field to range in; either by boldly asserting that to be proved which is not so, or by more artfully suppressing some circumstances^ stretching and warping others, and, distinguishing away the remainder. [Our italics.] Here, therefore, a competent number of sensible and upright jurymen, chosen by lot from'among those of the middle rank, will be found the best investigators of truth, and the surest guardians of public justice. For the most powerful individual in the state will be cautious of committing any flagrant invasion of another’s rights when he knows that the fact of his oppression must be examined and decided by twelve indifferent men, not appointed till the hour of trial; and that, when once the fact is ascertained, the law must of course redress it. This, therefore, preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachment of the more powerful and wealthy citizens. Every new tribunal, erected for the decision of facts, without the intervention of a jury, * * * ¿s a toward establishing aristocracy, the most oppressive of absolute governments. [Our italics.] The feudal system, which, for the sake of military subordination, pursued an aristocratical plan in all its arrangements of property, had been intolerable in times of peace, had it not been wisely counterpoised by that privilege, so universally diffused through every part of it, the trial by feudal peers. And in every country on the Continent, as the trial by peers has been gradually disused, so the nobles have increased in power, till the state has been torn to pieces by rival factions, and' oligarchy, in effect, has been established, though under the shadow of regal government, unless where the miserable commons have taken shelter under absolute monarchy, as the lighter evil of the two. * * * It is, therefore, upon the whole, a duty which every man owes to his country, his friends, his posterity, and himself, to *333maintain to the utmost of Ms power this valuable constitution in all its rights; to. restore it to its ancient dignity, if at all impaired by the different value of property [our italics] or otherwise deviated from its first institution; .to amend it wherever it is defective; and, above all, to guard with the most jealous circumspection against the introduction of* new and arbitrary methods of trial, which, under a variety of plausible pretenses, may in time imperceptibly undermine this best preservative of English liberty.” 3 Blaekstone’s Comm., chap. 23, *319.
The foundations of government may bo undermined quito as effectually through the assumption of arbitrary power by existing tribunals as through the creation of new and independent ones. The self-respecting independence of the individual citizen may be quite as well destroyed by the aggressions of powerful combinations now as it could have been by that of the nobility or aristocracy of earlier days. American liberty is safer while the courts follow Blackstone than it will be when they , follow those who hold a different point of view.
In Moran v. Leslie (1904), 33 Ind. App. 80, the injured person was perfectly cognizant of the risk, took his chance, and lost. The principle applicable to all cases, and heretofore stated, is that no man has the right to calculate close chances as to his ability to reach the track before the car. Whether the chance was close, viewing it as appellee did in the light of conditions then known to him (the fact that a collision did afterward occur not being one of them), was a question of fact. What facts he knew and what facts he ought to have known in view of the conditions and circumstances surrounding him were likewise questions for the ] ray-
19. The true doctrine is stated by the supreme court of Illinois in the following language: “We have for several years denied the contention that the failure to look and *334listen when approaching a railroad crossing was, as a matter of law, negligence, and have in recent years uniformly held that whether such failure was negligence was a question of fact, to be determined from all the facts and circumstances in the case. If, then, it was not negligence, as a matter of law, for the deceased to have changed his course at the street crossing and have turned out toward or upon the east track without looking and listening for a north-bound ear, avo are unable -to say that, as a matter of law, the deceased was guilty of negligence in doing so when it appeared that the car was 200 feet away from him, approaching a street crossing, and in the absence of evidence that he had any knowledge that such car was approaching. Appellant puts the question thus: ‘The sole question then arises, Was his conduct in turning to the left upon the track, where he might come face to face with an approaching car, contributory negligence?’ and we ansrver: ‘As a matter of law, no; as a matter of fact, it may have been.’ But to say that in a city, at the crossings of streets, every person in a conveyance rvho may veer from his course is guilty of negligence or want of ordinary care because ho may come face to face with an approaching car and may incur an injury, is to say that, as a matter of law, every person driving along a street must take one. course and not deviate from it, at the risk of receiving injury for which he shall have no compensation under any circumstances.” Chicago City R. Co. v. O’Donnell (1904), 208 Ill. 267, 70 N. E. 294, 2 St. R. Rep. 170; Chicago City R. Co. v. O’Donnell (1904), 207 Ill. 478, 69 N. E. 882.
20. If the street car company was suing the owner of the wagon for damages caused to its car .by the collision, could the court say, as matter of law, that the teamster was guilty of actionable negligence in attempting to cross the street because a car was within 50 to 150 feet? Certainly not. Tire utmost that could be said would be that the ques*335tion is a debatable one, and, being open to debate, it goes to the jury.
Petition overruled.
Robinson, P. J., Myers and Black, JJ., concur. Corn-stock, C. J., and Wiley, J., dissent.