what intelligent men they were and
it seems unnecessary for the judge to say that they are not to be
governed by prejudice and sympathy. Suppose the defendant is a rich
corporation, they are not going to find against it because it is rich.
The company can stand the loss of a few dollars out of its pocket
better than the poor man anyway. Not that they are going to decide for
that reason.

As these accumulating evidences of the judge's misunderstanding of
their attitude of mind pile up, the jury sink back into their seats.
After all, the charge of the judge is not more understandable than
most of the other parts of the trial. The saving point about it is
that the end is drawing near and they can soon get away and have a
smoke in the jury-room, and afterwards go home.

The judge, while he is charging, understands a little of what has been
going on in the jury's mind. He has seen the gleam of interest which
was in the jury's eyes at the beginning gradually die out. He notices
how they fall into resigned attitudes. He has a glimmering that the
good old legal aphorisms which he has been enunciating with such care
about the burden of proof, the weight of evidence, the credibility of
witnesses and the caution about sympathy and prejudice, are not very
convincing to the jury. But the conventions require that he must go
on.

"Gentlemen," he says, "I must instruct you to eliminate from your
minds any discussion of counsel upon questions of law or rulings of
the court upon the rejections of testimony, or decisions upon motions
to dismiss or direct. They involve matters of law with which you are
not at present concerned. 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 verd