In arriving at your verdict you are to
consider only the evidence."
Perhaps the judge feels a trifle foolish and therefore he becomes more
emphatic and solemn. He carefully and in a painstaking manner defines
the law of negligence. He tells them the law of negligence involves
two cardinal principles. "The first is that the plaintiff must
establish that the defendant by its employees was guilty of
negligence, that he failed to act as a prudent and careful man;
second, that the plaintiff must have shown himself free from
contributory negligence; that unless the jury find both of these, that
the plaintiff cannot recover." Then perhaps he interjects a little
more about the balance of proof as to these particulars. "If the jury
find the plaintiff was negligent and the defendant was negligent, they
must find a verdict for the defendant. If they find the plaintiff was
not negligent and the defendant was negligent, then they may find a
verdict for the plaintiff, provided they find, etc., etc. Otherwise
should they find the plaintiff was not negligent and the accident
happened not through the negligence of the defendant, then again must
they find for the defendant, or again--" but the jury by this time is
exhausted.
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