MIXED QUESTIONS OF LAW AND FACT.

The common law does not profess to lay down a minute

code of definite standards by which the conduct of mankind is
to be judged in every combination of circumstances which nay
possibly arise. It recognizes the futility of any attempt to fix
such standards, and often contents itself with announcing broad
general principles which give the material and general directions
for the construction of the standard to be applied in each specific
case as it- may arise. While such broad general -principles are
not peculiar to the law of Torts, they*appear most frequently
in it, and particularly in that part of it which deals with wrongs
caused by the breach of a duty to refrain from conduct creating
an undue probability of harm to the legally protected interests
of others, popularly called "negligence."
In every action of "negligence" two questions arise: (i)
should the defendant, as a reasonable man, have recognized that
the plaintiff's interests are within range of the effects of his
conduct, and (2) if so, should he, as a reasonable man, have
realized that his conduct contained a probability of harm to
some legally protected interest of the plaintiff, out of propor-
tion to its social value and utility? In neither does the law
generally attempt to state the precise circumstances which re-
quire the defendant to realize the plaintiff's proximity to the
scene of his conduct, nor the precise circumstances which should
apprise the defendant that his conduct contains a probability of
harm in excess of its social -value.
In many actions of "negligence" the further question arises:
has the plaintiff contributed to his injury by conduct of his
own, which, as'a reasonable man. he should have recognized as
containing an undue probability of harm to the interests %%hich
have suffered injury from the defendant's negligent. wrong-
doing?
(in)
112 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
I
All of these questions are generally spoken of as "mixed
questions of law and fact." This phrase is unfortunate,'
unless the proportions of the mixture can be clearly stated and
its component elements accurately defined. While such ques-
tions are, under our system of litigation, to be determined by
a jury, acting under the direction of a court, bound to follow
the broad general principles of law announced by it and subject
to its supervisory control, this is not peculiar to them. Every
question which is left to the jury is to be determined in the
same way. Yet questions, such as that of the existence of a
contract or of the guilt of a particular person accused of mur-
der, are not spoken of as "mixed questions of law and fact."
It is not, therefore, the fact that the court and jury have each
their own function to perform in solving such 4tuestions that
makes the profession assume them to be "mixed questions of
fact and law." It is the peculiar nature of the function which
the jury must exercise in determining such -questions-as well
as all other questions for the solution of which the.law has
declared no definite pre-existing rule-which has led to their
being so regarded.
In order that the true nature of this peculiar function may
be ascertained, it is necessary to consider what is "fact" and
what is "law."
The primary and popular meaning of the word "fact" is
something which has happened or existed,- including not only
the physical facts of the case but also more abstract matters,-
such as the state of mind of those individuals, whose state of
mind may be of legal importance.
"Law" primarily means a body of principles and rules
which are capable of being predicated in advance and which are
so predicated, awaiting proof of the facts necessary for their
application. While the court has a supervisory power over the
jury's findings of fact, in the primary and popular meaning of
' See as to this and as to much of the residue of this article, "The Com-
mon Law," 0. W. Holmes, Jr. (i88t), p. 122 et seq.
 MIXED QUESTIONS OF LAW AND FACT

that term, yet it exercises that power sparingly. The jury has
no power to declare the law, using that term in the sense above
stated.
But since it is impossible to anticipate the innumerable com-
binations of circumstances which may arise, it is impossible for
the law to formulate in advance definite standards by which the
propriety of conduct under every conceivable set of circum-
stances may be judged. It can at best announce broad general
principles, which give the materials and general directions for
the construction of the standard to be applied in each specific
case.
The problem of determining whether a particular act
should have been recognized by the so-called reasonable man as
threatening an undue probability of harm to others, requires for
its solution not only the ascertainment of the facts of the case,
that is, what the plaintiff and defendant did, the circumstances
under which they acted and the state of mind which actuated
their conduct, but also that someone, either court or jury, shall
determine whether a "reasonable man" would have recognized
that such conduct would create an- undue probability of harm
or that a "reasonable man" in the defendant's place would have
realized that his conduct would unduly imperil the plaintiff's
interests.
Were the "reasonable man" identical with the average man
and were the question what the average conduct of mankind
under similar circumstances is, the question would be purely one
of fact-of what is or exists--though involving an enormously
extended inquiry as to the conduct of all other men or a great
number of other men under similar circumstances. But the
"reasonable man" is not the average man. He is an ideal crea-
ture, expressing public opinion declared by its accredited spokes-
man, whether court or jury, as to what ought to be done under
the circumstances by a man, who is not so engrossed in his own
affairs as to disregard the effect of his conduct upon-the inter-
ests of others. He may be called a personification of the court
or jury's social judgment. The factor controlling the judgment
of the defendant's conduct is not what is, but what ought to be.
114 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

No matter whether the question is determined by court or

jury, it is the opinion of the court or jury as to what ought
to be done under the circumstances of that particular case which
is controlling and which is expressed in its decision. It is the
sound judgment, the sense of proportion between the utility of
the act and the injury threatened, the valuation of the respec-
tive interests concerned and the actual experience of the court
or jury, which is exercised and utilized.
Under our system of conducting litigation the function of
reducing these broad general principles to definite standards is
in theory exercised by the jury under the control and super-
vision of the court. In fact, it is exercised by both court and
jury, the court doing so under the guise of preventing the jury
from falling into manifest error.
It is clear that this function is not that of declaring the
law 2 in the sense in which that term has been defined, as
a pre-existing rule automatically applicable to certain facts when
proved to exist, and it is equally clear that it is not a finding
of fact in the primary sense of that term. 3 It is more nearly,
akin to a declaration of law than to a finding of fact, since it
does create obligatory standards, which, if created by the jury,
are, it is true, binding in only the particular case then before it,
but which none the less are the standards by which the conduct
of the parties to that litigation is to be judged to determine
their respective legal rights and liabilities. The fact that it is
not called a pure question of fact shows that the profession has
felt the kinship which the function exercised by the jury has
to tiat which courts exercise in declarivg law in its primary
sense, but the legal profession has so long accepted it as axio-
matic that the jury has no power except to find facts, that any
question left to a jury is taken to be at least in part a question
of fact.

'See, however, Mr. Justice Holmes, "Law in Science and Science in Law,"
12 HARV. L REv. 443 (1&)8), at p. 457.
"But see James Bradley Thayer, "'Law and Fact' in Jury Trials," 4
HARv. L REv. 147 (i89o), at p. i6g.
 MIXED QUESTIONS OF LA AND FACT x1

But it is time to recognize that ihis supposed axiom is not

accurate. Until comparatively recently it was thought to be
equally axiomatic that courts had no power to find facts, but
now it is universally recognized that courts not only may but
often must make findings of fact in the primary and proper
sense of that term. There seems, therefore, no reason why
it should not be recognized that the function which the jury
exercises in defining standards of conduct is that of declaring
the standard by which the consequence of some particular act
or omission is to be determined. Whatever else this is, it is
not that of finding the existence of any fact or facts, and is
not a law-declaratory function as the terni is ordinarily used.
It is something between the two, necessary to the proper ad-
ministration of the pre-existing broadly stated law by making
it capable of application to the facts of specific litigated cases,
and may be properly termed ''administrative."
To so term it should cause no shock to the legal mind,
which has become habituated to the tern "administrative" as
applied to the very similar function entrusted by many legisla-
tive acts to Boards and Commissions. Many modern acts show
that legislatures, like the common law, realize the impossibility
of prescribing a definite rule for every conceivable situation.
These acts are, therefore, couched in much such broad general
terms as those in which the law announces its general prin-
ciples. Thus, they avoid rigidity and the danger that standards
and rules which, at the time they were enacted seem useful or
necessary, may become impracticable and ridiculous under
changed conditions. These acts, therefore, create administra-
tive boards and commissions whose duty, like that of a jury
in a negligence case, is to gain information and experience and
to create standards applicable to specific situations in accordance
with the general principles of the act. These standards, it is
true, differ from those created by a jury in that they have not'
the purely ephemeral character which the finding of a jury has,
but are valid until changed by the Board or Commission.
But, on the other hand, they have not the absolute finality
which a legislatively enacted standard would have, but are
1i6 UNIVERSITY OF PENNSYLVANIA LAW.REVIEW

flexible, open to reconsideration and change, if changed condi-

tions prove that they no longer adequately express the general
principle of the act.
II
The reasons why the function of fixing definite standards
is in theory to be exercised by the jury and is in practice exer-
cised by both court and jury, rather than by the -court alone
are in part historical, in part, express the public's desire to have
its conduct judged by the layman ("the man in the street")
rather than by the more sophisticated and expert judgment of
the trained lawyer, whose judicial experience may have given
him a biased point of view.
Entrusting it to the jury has the advantage of preventing
the same sort of rigidity which legislators avoid by the crea-
tion of Administrative Boards, and which would result from a
judicial declaration of particular standards.
The traditional view that a judicial ruling on any subject
announces a principle of law fixed, permanent and immutable,
affixes these qualities to a standard of conduct judicially fixed
as required by the circumstances of a particular case, and not
only makes that standard a rule to which others must conform
in the future, but prevents its re-examination no matter how
material conditions and popular opinion have changed.
The decision of a jury determines the standard for the one
case, and for that case only. Itoperates only e.r' post facto. It
does not create, as would a decision of the court or a ruling by
an administrative board, until changed, a standard to which
others must conform in the future. It creates merely standards
to which the defendant must have conformed to have escaped
liability, and to which the plaintiff must have conformed to
prevent him from being guilty of contributory negligence and
so barred from recovery, though neither defendant nor plain-
tiff could have known of it in advance and must, therefore, have
taken the risk that his moral and social standard shall have
conformed to that of the jury. Such a standard, once used to
determine the wrongfulness of the act or omission of the de-
 MIXED QUESTIONS OF LAW AND FACT

fendant in a particular case, has fulfilled. its purpose. It has

no force, binding or persuasive, in determining whether identical
conduct under identical circumstances is right or wrong. Thus,
room is left for a change of standard when a change in the
physical conditions of life, or a change in the public valuation
of the respective interests concerned, require it.
It may be that this leaves standards of conduct too uncer-
tain and indefinite. The purely ephemeral character of the jury's
findings leads to results which laymen at least regard as unjust.
To the lay mind, justice essentially requires that the same con-
duct under the same circumstances shall entail the same liability.
Yet it constantly happens that in identical situations, one jury
will fix a standard which permits a recovery and another will
set a standard which denies it.
The difficulty lies in the fact that the common law has no
machinery, like the legislatively created administrative board,
which can make rulings reducing general rules to that partic-
ularity necessary for their application to individual cases, which
have not only a validity until changed but a notoriety which may
serve as a guide to those who desire that their conduct may
not entail liability, buit which the administrative bodies not only
may, but must, re-examine from time to time to determine
whether they still are valid in view of changed conditions and
changed public opinion as to the value of the respective-inter-
ests concerned.

III
While the function of fixing definite standards is in theory
assumed to be exercised by the jury under the control of the
court, the court's control is far more often exercised in such
matters than in keeping them from error in their findings of
true fact.
There are three functions of the jury over all of which
the court has control. The first is to determine the credibility
of witnesses; the second is to determine the-probative value of
evidence produced before it; the third is the fixing of definite
standards of conduct. Over the first the court exercises little
 I18 UNII'ERSITY OF PENNSYLIANIA LAW REVIEW

or no control. There are now few, if any, general rules to de-

termine which o'f two witnesses, whose testimony is diametri-
cally opposed, shall be believed. Courts rarely, if ever, set aside
a verdict on the ground that they are convinced that the jury
attached undue weight to the testimony of a witness whose cred-
ibility it distrusted, though here the judicial experience of a
court gives it an eminent superiority of power to detect palpa-
ble perjury. They exercise a far greater control over the pro'
bative value which a jury may attach to the evidence presented.
But it is only when the jury's determination of standards
of conduct is before them that they show any -endency to usurp
the function of the jury, assuming that it is the exclusive func-
tion of the jury to fix such standards. The reason for this is
obvious. The question as to whether a defendant has been
guilty of conduct, which creates an undue probability of harm
to others, requires those who judge his conduct to weigh the
utility of the act against the probability of harm which it con-
tains; not the utility of the act to the actor alone, but the utility
of the act to society, the interest that society may have in per-
mitting such conduct, notwithstanding the risk to others which it
entails, because such conduct is on the whole of social value.
'But the general utility of such conduct is not likely to receive
much consideration from a jury who sees before them a plain-
tiff whose vital interests have been harmed by a particular in-
stance of it. A court might emphasize to the jury ad nauseam
the social value of the act, but the jury would only see one man
injured by another. And only the most confirned optimist
would dare to hope that they would judge the defendant's con-
duct by what that ideal creature, the "reasonable man," would
do. After all the most that can be expected of a jury is that
they shall judge the defendant's conduct by what the jurymen
would themselves do in a similar situation. But even this they
rarely do. The concept universal among all primitive men, that
an injury should be paid for by him who causes it, irrespective
of the moral or social quality of his conduct, while it has dis-
appeared from legal thought. still dominates the opinion of the
sort of men who form the average jury. There is, besides, the
 MIXED QUESTIONS OF LAWV AVD FACT

perhaps natural prejudice in favor of a poor man injured by

a rich man, and particularly by a corporation which is always
assumed to have unlimited resources. The tendency to be char-
itable with other people's money is almost irresistible, and when
one considers that the bulk of accidents are caused by the busi-
ness activity of corporations and the amusement activity of
those who, to the jury at least, appear rich, it is not surprising
that courts should feel that they are bound to protect defend-
ants from what appears to them to be an unduly stringent stand-
ard of conduct which the jury, if the matter we'e left to them,
would fix as a justification or excuse for a finding in favor of
the plaintiff against a defendant whose conduct the courts would
not regard as socially reprehensile, by withdrawing cases from
the jury where they believe that the defendant's conduct was
not unduly dangerous, and by setting aside verdicts based on
the jury's insistence on an overly stringent standard of con-
duct.
It is quite clear that due consideration can only be given to
the social utility of an act which is based upon any broad gen-
eral economic theory, by the court's taking the decision into its
own hands. And it is immaterial whether it does so by defi-
nitely asserting the right to fix the standard, or by saying that
the jury would be acting unreasonably if they fixed a standard
which regarded as wrongful, conduct which the court believes
to be justified by economic necessity. On the whole, therefore,
it may well be that the tendency of courts to assume the function
of fixing standards, wherever they feel that the jury will not
give proper consideration to the social utility of the defendant's
conduct, is necessary for the proper administration of the gen-
eral principles by which a defendant's guilt or innocence should
be determined.
But the practice has two great dangers. The first is that
of the undue rigidity which results from the unfortunate feel-
ing, that any decision of a court creates a rule of law which, as
law, is absolutely and eternally valid. Such rigidity is espe-
cially pernicious where the decision states a standard of conduct
determined by a comparison of the value of the interest im-
120 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

periled and the extent of the probability of harm thereto with

the social value of the conduct which threatens and causes the
harm. Not only may there be changes in the physical conditions
and surroundings of life by new inventions, new modes and
habits of living, but there may be, and often is, a complete re-
valuation of the respective interests concerned. To regard a
standard of conduct as fixed and immutable because judicially
announced, is to create a standard which, however just or even
necessary at the time, may become a scandal and a hissing in
the future.
It is true that a persistent change in public opinion as to
the relative value of the interests compared, tends to find ex-
pression in judicial decision. Thus, the early decisions, which
held that the landowner's interest in doing as he pleased upon
his own land, was of greater value than the life and limbs of
even a morally innocent intruder, have yielded to a change in
public opinion which places a higher value on life and limb than
upon the traditional dominional prerogative of a landowner.
Yet the processes by which this change of value has forced
the creation of a new standard by which the conduct of land-
owners is judged, has been one of continual fiction and false
analogies. 4 It is only recently that a few courts have had the
temerity to base such decisions upon the relative values of the
interests concerned.5 And even within the last year one of the
ablest and most enlightened of American judges denied recovery
in a case of an infant trespasser, because he did not come
within the exact terms of a fiction, whose only purpose was to
protect just such persons as infant trespassers, while appearing
to adhere to archaic precedents which denied. them protection.'
The second danger is that, in its endeavor to protect de-
fendants from the prejudice of juries, the court must by its

"F. H. Bohlen, "Owner's Duty to Those Entering His Premises of Their

Own Right," 69 U. op PA. L REv. 142, 237. 4o (i92z). especially 237 to 252,
and 347 to 350: and Professor 'Manley 0. Hudson's able and exhaustive arti-
cle on "The Turntable Cases in the Federal Courts," 36 HARv. L. Ray. 826
(1923).
'See "The Turntable Cases in tle Federal Courts," note 4, supra.
*Holmes, J., in Britt v. United Zinc & Chemical Co., 258 U. S. :8 (1922).
 MIXED QUESTIONAS OF LAW AND FACT 12t

decisions fix standards of conduct so definite and precise as to

give to unscrupulous practitioners extraordinary opportunities for
the successful coaching of their witnesses. This is particulaily
true of the very minute and rigid codes of standards, judicially
established in soin~e jurisdictions, to which plaintiffs must con-
form to clear themselves of contributory negligence. Often
these standards tend to degenerate into an etiquette or ritual,
having little or no relation to what any normal person would
regard as being obligatory under the various circumstances
which they cover. In such cases unscrupulous practitioners
know exactly what they must prove to escape a non-suit or
a directed verdict for the defendant.
It is no uncommon experience to hear uneducated wit-
nesses describe the conduct of the plaintiff in terms which are
almost a literal repetition of the latest opinion by some justice
of the supreme court of the particular state. This may be a
mere coincidence. It is not impossible that even an ignorant
foreigner recently come to this country may have a mind whose
operations are so like those of a justice of a supreme couri as
to lead him to speak in substantially identical language. But it
does not seem uncharitable to suspect that careful instruction
by practitioners, whose interest it is to study such opinions
minutely, is responsible for such testimony. Thus, courts, in their
endeavor to protect the defendant, often overshoot their mark
and put a weapon in the hands of those who prostitute their
profession by false claims in which they have a direct and ma-
terial interest. But even if this practice is not as prevalent as
one is led to believe by the statements constantly made by law-
yers, whose principal business is in defending accident cases, yet
the very rigidity of the rules, the insistence that the plaintiff
must exercise a degree of care which the ordinary man would
regard as altogether unnecessary, is apt to lead the jury to
believe that, if the court leaves the case to them. the, are sub-
stantially directed to find a verdict for the plaintiff. It is true
they need little urging. but at the same time it seems impossible
to ignore the effect of arguments, made before them on motions
i2 UNIVERSITY OF PEVNSYLVANIA LAW REVIEW

for non-suits, in wlhich the court is asked to apply to the plain-

tiff's conduct standards which the jury regards as unnecessarily
severe, as leading them to feel that their function is only to
register a verdict in favor of the plaintiff.
Is it too much to hope that courts, who must often take
over this function from the jury in order to give proper
weight to the social utility of conduct which undoubtedly threat-
ens harm to the legally protected interests of others, will real-
ize that, in so doing, they are exercising an administrative
function and that such decisions are not, like their decisions
construing and declaring those principles which are fundamental
to our concept of law, sacrosanct from judicial re-examination
and change under changing conditions?
Francis H. Bohlen.
University of Pennsylvania Law School.