dissenting. — I dissent from tbe last point ruled, because I think tbe plain and ordinary meaning of tbe first question as asked to be submitted to tbe jury required them to find the single and ultimate fact whether tbe plaintiff exercised ordinary care and prudence under tbe circumstances. So a “ common understanding,” if involved, just that inquiry and no more, and it ought therefore to bave been submitted. So tbe second question, to “ a common understanding,” was an inquiry whether the defendant usually and commonly carried timber loaded in tbe same way. Such is tbe fair and plain meaning of tbe language used, and tbe jury would bave so understood it.
I agree with tbe other rulings wherein tbe opinion adopts tbe plain and ordinary meaning of tbe language used, and very satisfactorily answers tbe hypercriticism of it by counsel, and refutes tbe perverted meaning sought to be attributed to it. But when the opinion comes to these questions it changes front, and itself becomes hypercritical and perverting! It is, therefore, not consistent with itself, nor fair to court or counsel; nor, as I think, is it true to justice or obedient to tbe law.