The federal Constitution does not prevent the states from
leaving the defense of contributory negligence to the jury in all
cases, those in which it is a mere question of law as well as those
in which it is a question of fact. P. 251 U. S.
Oklahoma Constitution, Art. 23, § 6, sustained on this
74 Okla. ___ affirmed.
Page 251 U. S. 55
The case is stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action brought by the defendant in error for knocking
down and killing her intestate, Roberts. He stepped upon the
railroad track when a train was approaching in full view, and was
killed. It may be assumed, as the state court assumed, that, if the
question were open for a ruling of law, it would be ruled that the
plaintiff could not recover. But the Oklahoma Constitution provides
"the defense of contributory negligence or of assumption of risk
shall, in all cases whatsoever, be a question of fact, and shall at
all times be left to the jury."
Art. 23, § 6. The case was left to the jury, and they found a
verdict for the plaintiff. Judgment was entered for her, and was
affirmed on error by the supreme court of the state, which held
that the provision applied to the case, and that, when so applied,
it did not contravene the Fourteenth Amendment of the Constitution
of the United States.
The state constitution was in force when the death occurred, and
therefore the defendant had only such right to the defense of
contributory negligence as that Constitution allowed. The argument
that the Railroad Company had a vested right to that defense is
disposed of by the decisions that it may be taken away altogether.
Arizona Employers' Liability Cases, 250 U.
; Bowersock v. Smith, 243 U. S.
, 243 U. S. 34
is said that legislation cannot
Page 251 U. S. 56
change the standard of conduct, which is matter of law in its
nature, into matter of fact, and this may be conceded; but the
material element in the constitutional enactment is not that it
called contributory negligence fact, but that it left it wholly to
the jury. There is nothing, however, in the Constitution of the
United States or its amendments that requires a state to maintain
the line with which we are familiar between the functions of the
jury and those of the court. It may do away with the jury
altogether, Walker v. Sauvinet, 92 U. S.
; modify its constitution, Maxwell v. Dow,
176 U. S. 581
requirements of a verdict, Minneapolis & St. Louis R. Co.
v. Bombolis, 241 U. S. 211
the procedure before it, Twining v. New Jersey,
211 U. S. 78
211 U. S. 111
Frank v. Mangum, 237 U. S. 309
237 U. S. 340
As it may confer legislative and judicial powers upon a commission
not known to the common law, Prentis v. Atlantic Coast Line
Co., 211 U. S. 210
may confer larger powers upon a jury than those that generally
prevail. Provisions making the jury judges of the law as well as of
the facts in proceedings for libel are common to England and some
of the states, and the controversy with regard to their powers in
matters of law more generally, as illustrated in Sparf v.
United States, 156 U. S. 51
3 Dall. 1, 3
U. S. 4
, shows that the notion is not a novelty. In the
present instance the plaintiff in error cannot complain that its
chance to prevail upon a certain ground is diminished when the
ground might have been altogether removed.