Schwer v. New York, Chicago & St. Louis Rd. Co.

I desire to state the basis of my concurrence. It is my view that, although actual custom or usage of others under similar circumstances is not controlling on the question of the exercise of due care of parties litigant, nevertheless evidence of such custom or usage is competent to be considered by a jury in determining the propriety of a specific type of conduct. 38 American Jurisprudence, 1015, 1016, Sections 317, 319.

In my view, the evidence, under such circumstances, must be confined to the actual custom or usage of others rather than to rules purporting to govern conduct under…