1. Negligence is a question for the jury. The charge of the court ought to trust the jury with the question. "Why should not the judge think that the jury can discriminate between what is, and what is not, negligence % The jury had access to the proper sources of information, through their own observation and experience. Negligence is the omission of diligence; and diligence is not otherwise defined than by referring to the actual conduct of men in the management of their own affairs. The lowest grade of diligence conforms to the conduct of the man of common sense who is least attentive to his interest; ordinary diligence is measured by the conduct of the prudent man ; extraordinary diligence by that of the very prudent and thoughtful man. Code, §§2061, 2062, 2063. It is a mistake to suppose that the judge is better informed concerning these things than the jury. On questions of fact, the jury are the chosen experts of the law.
2. When the guest admitted that the loss occurred from his own fault, the opportunity was excellent to contend in argument that the loss proceeded from the negligence of the plaintiff. But the defendant had no right to an intimation from the bench that the evidence might mean so and so. What it meant was for the jury.
3. Though the verdict was what it ought to have been under the evidence, a new trial is awarded in obedience to section 3248 of the Code.
