Seymour D. (Seymour Dwight) Thompson.

A treatise on the law of trials in actions civil and criminal (Volume 2) online

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Tit. V, Ch. LIV.]



§ 1GS9. Illustrative Coses where Negligence declared as

Matter of Law. — Exami)les of contributory negligence as a
matter of law may be found in the act of pcrson^j walking upon
railway tracks without taking adequate precautions to discover
a])proaching trains ; ' crawling under or through railway cars,
while stopped temporarily upon the track; ^ riding upon the
platform of a railway passenger car ;^ riding with the arm or a
portion of the body protruding from window of railway car ; *

V. Loug, 75 Pa. St. 257; Pittsburgh
&c. R. Co. V. Pearson, 72 Pa. St. 109;
O'Brien v. McGlincliy, 68 Me. 552.
Conii)are Hyde v. Scyssor, Cro. Jac.
538; 3 Bla. Coram. 140; Brockbauk w.
Wliiteliaven &c. R. Co., 7 Hurl. & N.
834; Wliitcorab ». Barre, 37 Vt. 148;
Laugliliu ?;. Eaton, 54 Me. 156; Kav-
anaugh v. Janesville, 24 Wis. 618;
Smith V. St. Joseph, 55 Mo. 456; Mc-
Kiuuey v. Western Stage Co., 4 Iowa,
420; Rogers v. Smith, 17 Ind. 323;
Long V. Morrison, 14 Ind. 595.

1 Carroll v. Minnesota &c. R. Co., 13
Minn. 930; Green v. Erie R. Co., 11 Hun
(X. Y.), 333; Herring v. Wilmington
&c. R. Co., 10 Ired. (N. C.) 402; Kenyon
u. New York &c. R. Co., 5 Hun (N. Y.),
479; Donaldson v. Milwaukee &c. R.
Co., 21 Minn. 293. See also Elwood v.
New York &c. R. Co., 4 Hun (N. Y.),
808; Gonzales V. New York &c. R. Co.,
50 How. Pr. (N. Y.) 126; Poole v.
North Carolina &c. R. Co., 8 Jones L.
(N. C.) 340; Illinois &c. R. Co. v.
Hall, 72 111. 222; Illinois &c. R. Co. v.
Hetherington, 83 111. 510; Harlan v.
St. Louis &c. R. Co., 64 Mo. 480; s. c.
2 Thomp. Neg. 439 ; Cai'liu v. Chicago
&c. R. Co., 37 Iowa, 316; Murphy v.
Chicago &c. R. Co., 45 Iowa, G61; s.
c. 38 Iowa, 539; Laicher v. New Or-
leans R. Co., 28 La. Ann. 320; Bancroft
V. Boston &c. R. Co., 11 Allen (Mass.),
34; s. c. 97 Mass. 275; Michigan &c.
E. Co. V. Campau, 34 Mich. 468; Car-

roll V. Minnesota &c. R. Co., 13 Minn.
30; Donaldson v. Milwaukee &c. R.
Co., 21 Minn. 293; Lake Shore &c. R.
Co. V. Hart, 87 111. 529; Rothe v. Mil-
waukee &c. R. Co., 21 Wis. 256;
O'Dounell v. Missouri &c. R. Co., 8
Cent. L. J. 414; Morgan v. Nashville
&c. R. Co., 58 Teuu. 379; Philadelphia
&c. R. Co. V. Spearen, 47 Pa. St. 300;
post, § 1803.

2 Ostertag V. Pacitic &c. R. Co., 64
Mo. 421; Central &c. R. Co. v. Dixon,
42 Ga. 327; Chicago &c. R. Co. v.
Dewey, 26 111. 255; Chicago &c. R.
Co. i?. Coss, 73 111. 394; Gahagan v.
Boston &c. R. Co., 1 Allen (Mass.),
187; 7 Cent. L. J. 107; Stillson v.
Hannibal &c. R. Co., 67 Mo. 671;
McMahon v. Northern &c. R. Co., 39
Md. 438; Lewis v. Baltimore &c. R.
Co., 38 Md. 588.

3 Hickey v. Boston &c. R, Co., 14
Allen (Mass.) , 29 ; Quinn v. Illinois &c.
R. Co., 51 111. 495.

* Todd V. Old Colony &c. R. Co., 3
Allen (Mass.), 18 ; s. c. 7 Allen (Mass.),
207 ; Pittsburgh &c. R. Co. v. Andrews,
39 Md. 329 ; Indianapolis &c. R. Co. v,
Rutherford, 29 Ind. 82; Morel v. Mis-
sissippi Ins. Co., 4 Bush (Ky.), 535;
Pittsburgh &c. R. Co. v. McClurg, 56
Pa. St. 294; Louisville &c. R. Co. v.
Sickings, 5 Bush (Ky.), l;IIolbrook
V. Utica &c. R. Co., 12 N. Y. 236.
Contra, however, Spencer u. Milwaukee
&c. R. Co., 17 Wis. 487; Chicago &c.



leaping from a train of cars while the same is in motion,^ or
landing at a place obviously not designed for the reception of
passengers. In all these cases, unless there are special circum-
stances tending to exonerate the plaintiff from the im})utation of
contributory negligence, the question is to be decided by the
court, and not by the jury.

§ 1690. Presumption of Xegligence in the Case of Injuries
to Passengers : General rule. — It is a general rule, in actions
for damages against carriers of passengers, that, "svhere the in-
jury is shown to have proceeded from something under the con-
trol of the carrier, whether it relate to the character of vehicle
or other moans of trans})ortation, or to the conduct of his serv-
ants, and where it is not conclusivel}^ shown to have proceeded
from some accidental source beyond his control, a presumption
arises that he has been negligent in the discharge of the high
degree of care which the law imposes upon him.^

R. Co. V. Pondrom, 51 111. 333; "Win-
ters V. Ilauuibal &c. R, Co., 3'J Mo. 4(i8;
Barton v. St. Louis &c. R. Co., 52 Mo.
253; post, § 1793.

1 Railroad Co. v. Aspcll, 23 Pa. St.
147; Jeffersonville &c. R. Co. v. Heu-
drick's Administrator, 26 Ind. 228;
Morrison v. Erie R. Co., 56 N. Y. 302;
Burrows v. Erie R. Co., 63 N. Y. 556;
Daraont v. Xew Orleans &c. R. Co.,
9 La. Ann. 441 ; Douglierty v. Cliicago
&c. R. Co., 86111. 467; Gavett v. Man-
chester &c. R. Co., 16 Gray (Mass.),
501 ; Lucas v. New Bedford &c. R. Co.,
6 Gray (Mass), 64; Ginuon v. New
York &c. R. Co., 3 Robt. (N. Y.) 25;
Illinois &c. R. Co. v. Slatton, 54 111.
13;); Ohio &c. R. Co. v. Schiebe, 44 111.
460; Ohio &c. R. Co. v. Stratton, 7.s 111.
88; s. c. 3 Cent. L. J. 415; post, §17'J4.

2 Boweu V. New York &c. R. Co., 18
N. Y. 408; Christie v. Griggs, 2 Camp.
7!t; s. c. Tliomp. Carr. Pass. 181;
Baltimore &c. R. Co. r. AVightman,
29Gratt. (Va.) 431,444; Great Western

R. Co. V. Braid, 1 Moo. P. C. C. 101;
s. c. 9 Jur. (X. s.) 339; 11 "Week. Rep.
444; Carpue r. London &c. R. Co., 5
Q. B. 749, per Lord Denham, C. J., at
nisi prius; Skinner v. London &c. R.
Co., 5 Esch. 786; Meier v. Pennsyl-
vania R. Co., 64 Pa. St. 225; Laing r.
Colder, 8 Pa. St. 479, 483, per Bell, J.;
Sullivan v. Philadelpliia &c. R. Co., 30
Pa. St. 234, 239; Parish v. Reigle, 11
Gratt. (Va.) 697; "Wilkie v. Bolster, 3
E. D.Smith (X. Y.), 327; Stokes r.
Saltoustall, 13 Pet. (U. S.) 181; s.c.
Thomp. Carr. Pass., p. 183; Railroad
Co. V. Pollard, 22 Wall. (U. S.) 341;
Holl)rook V. Utica&c. II. Co., 16 Barl).
(N. Y.) 113 (afflrmed 12 N. Y. 236);
Toledo &c. R. Co. v. Beggs, 85 111. 80:
Pittsl)urgh&c. R. Co. v. Thompson, 5ii
111. 138; McKinncy v. Neil, 1 MeLean
(U. S.), 540; Stockton v. Ercy, 4 Gill
(Md.), 406; Fairchild v. California
Stage Co., 13 Cal. 599; Ware t'. Gay,
11 Pick. (Mass.) 106; Youge ??. Kinney,
28 Ga. Ill; Brehra v. Great Western

Tit. V, Ch. LIV.]



§ 1G91. Facts from which this Presuniption arises. — I'his
presumption arises incases where it is shown, without more, that
the injury to the passenger occurred in consequence (^f the de-
feudant's stage breaking down, ^ or overturning; '^ or of the horse
hitched to his omnibus kicliing through the front panel of the
vehicle ; '^ or of the horses starting up while the passenger was
alighting ; ^ or of the embankment of a railway giving way; ^ or
of a railway train running off the traciv,^ or colliding with an-
other train,^ or with an object projecting from a car of a train
coming in the opposite direction u})on another track of the de-
fendant ;^ or by a railway car breaking down ;'' or by the explosion
of a steam boiler on the carrier's vessel, ^*^ or by some unknown
object striking the car injuring the passenger, ^^ or by the passen-
ger being thrown dowm while standing in the car in consequence

R.Co., 3-tBarb. (X.Y.) 25G; Curtis v.
Kochester &c. R. Co., 18 N. Y. 534;
Thomp. Carr. Pass., p. 188; Galena &c.
K. Co. r. Yarwood, 15 III. 408; s. c.
17 111. 509; McLean v. Burbauk, 11
Minn. 277; Sawyer v. Hauuibal &c. R.
Co., 37 Mo. 210, 2G0; post, § 177tJ.

1 Christie v. Griggs, 2 Camp. 79;
s. c. Tliomp. Carr. Pass. 181; Ware v.
Gay, 11 Pick. (Mass.) lOG.

2 Farisliu. Reigle, 11 Gratt. (Va.)
697; Stokes tJ. Saltonstall, 13 Pet, (U.
S.) 181; s. c. Tliorap. Carr. Pass. 183;
McKJuuey v. Neil, 1 McLean (U. S.),
540; Stockton u. Frey, 4 Gill (Md.),
40G; Faircliild y. California Stage Co.,
13 Cal. 599.

* Simsou V. London &c. Omnibus
Co., L. R. 8 C. P. 390; s. c. 42 L. J.
(C. P.) 112; 21 Week. Rep. 595; 28, L.
T. (X. s.) 550.

•4 Roberts v. Jolmson, 58 N. Y. 613
(affirming s. c. 5 Jones & Sp. 157).

* Great Western R. Co. v. Braid, 1
Moo. P. C. C. (X. s.) 101; s. c. 9 Jur.
(X. s.) 339; 11 Week. Rep. 444; Brelim
V. Great Western R. Co., 34 Barb, (N.
Y), 256. Contra, Witliers v. Nortli Kent

R. Co., 27 L. J. (Excli.) 417; s. c, nisi
prius, sub noiu. Kent v. Great Nortliern
R. Co., 1 Fost. & Fin. 165.

6 Carpue v. London &c. R. Co., 5 Q.
B. 749, per Lord Denliam, C. J., at nisi
prius; Sullivan v. Philadelphia &c. R.
Co., 30 Pa. St. 234; Pittsburgh &c. R.
Co. V. Thompson, 56 111. 138; s. c. 4
Ch. Leg. N. 9; Yonge v. Kinney, 28
Ga. Ill; Edgerton v. New York &c.
R. Co., 35 Barb. (N. Y.) 389; Zemp v.
Wilmington &c. R, Co., 9 Rich. L. 84;
Dawson v. Manchester &c. R. Co., 7
Hurl. & N. 1037. Contra, Bird v. Great
Northern R. Co., 28 L. J. (Exch.) 3.

' Skinner v. London &c. R. Co., 5
Exch. 786; s. c. 2 Eug.Law & Eq. 360;
15 Jur. 299 ; New Orleans &c. R. Co. v.
Allbrittou, 38 Miss. 242, 274.

8 Walker v. Erie R. Co., 63 Barb.
(N. Y.) 260.

^ Meier v. Pennsylvania R. Co., 64
Pa. St. 225; Toledo &c. R. Co. v. Beggs,
So 111. 80.

1'^ Caldwell v. New Jersey Steamboat
Co., 47 N. Y. 282, 293.

1 Ilolbrook V. Utica &c. R. Co., 16
Barb. (N.Y.) 113 (affirmed 12N.Y. 236).

1238 TKOvixcE OF COURT AND JURY. [2 Tbouip. Tr.,

of it.s boino; violently struck by anotbcr car in ,<witcbinir.^ In
these and many other like cases, the mere fact that the accident
happened imder the circumstances named, creates a presump-
tion of neirliffence aixainst the carrier which he must over-
come by evidence on his part, or he must suffer a judgment for

§ 1G92. Whether this Presumption has been repelled. —

Whether the defendant has succeeded in showing a state of facts
which repels this presuni})tion, is a qupslion for the jury. '^

§ 1G93. Instances of other Questions for the Jury. — In

actions of this kind, the following matters have also been held
questions for the jury: AVhether a railway company has been
guilty of negligence in not ascertaining the utility of the latest
im})rovomcnts which have been devised for the protection of
passengers, and in not adopting them; * whether the act which
occasioned the injury was willful and malicious, in such a sense
as to be beyond the scope of the servant's authority, or whether
it was mistakenly conceived to be a necessary use of force to
effect a removal of the passenger from the train : ® and wdiether
a passenger, injured Avhile standing on the platform of a railwaj'
passenger coach, knew that it was a prohibited place, and, if so,
whether under the circumstances his act so contributed to the
injury as to exonerate the carrier.*'

§ 1694, In the Relation of Master and Servant: Who are
Fellow-Servants in a Common Emplojiuent. — According to a
well-known rule of law, in force in most American jurisdictions,
a servant who receives a hurt in consequence of the negligence'

1 Railroad Co. r. Pollard, 22 Wall. ^ lloircman r. Western R. Corp., 13
(U. S.) 341. iS\ Y. 9; s. c. Tliomp. Carr. Pass. KiO;

2 Scefurthcronthissubjeet Thonip. post, §§ 1777, 1779, 1780.

Carr. Pass. 209 et seq. ^ Jack.sou v. Second Ave. R. Co., 47

3 Sullivan r. Philadelphia R. Co., N. Y. 274; x>ost, §§ 1784, 1785, 178r;.
30 Pa. St. 2.34 : Brehm v. Great Western « Zemp v. Wilmiugtou &c. R. Co., 9
R. Co., 31 Harl). (N. Y.) 250; post, § Rich. L. (S. C.) 84.


Tit. V, Ch. LIV.] NEGLIGENCE. 1239

of a fc'llow-scrvant, engaged iu the same common employment
with him, cannot recover damages of the master. The rule of
respo)idf'(tt superior does not ai)ply to such a case. In an action
by a servant against his master for damages arising from the
ncizligence of a person whose relation to the plaintiff depends
upon a state of fads which is not disputed, the question whether
or not such person was a fellow-servant of the plaintiff, within
the meaning of this rule, is a question oflaiu for the court; ^but
if the facts are disputed, the law governing those relations
should be declared, upon the alternatives presented })y the testi-
mony.^ If a servant is injured by the breaking of a rope used
in hoisting goods, in consequence of the neglect of a fellow-serv-
ant, who knew of the defective condition of the rope, to supply
a new one, in accordance with a duty which the master has im-
posed upon him, the question whether the fellow-servant acted as
a fellow-servant merely, or as a representative of the master, is a
question of law, and it is error to submit it to a jury. What the
servant was emploj'ed to do is a question of fact ; the capacity
in which he did it is an inference of law. In such a case, where
there is any question as to the facts, they should be left to the
jury, with instructions as to the legal inferences to be drawn
from the facts which should be found. But where the facts are
not disputed, the question is one of pure law, and the error of sub-
mitting it to the jury will require a new trial, unless the jury de-

1 Marshall v. Schricker, G3 Mo. 187; Smith v. Peninsular Car-works
308; McGowau v. St. Louis &c. R.Co., (Mich.), 27 N. W. Rep. G()2; Triliay v.
CI Mo. 528, .532; Cook r. Hannibal &c. Brooklyn Lead Min. Co. (Utah), 11
R. Co., G3 Mo. 397; Whalen r. Centen- Pac. Rep. 012; St. Louis &S. F.Ry.Co.
nary, 62 Mo. 32G; Compare Potter v. Weaver (Kan.), 11 Pac. Rep. 408;
V. Chicago &c. R. Co., 46 la. 399. Rodgers v. Central Pac. R. Co. (Cal.),

2 Marshall v. Schricker, supra. 8 Pac. Rep. 377; Hannibal & St. J. R.
Duty of master to provide reasonably Co. v. Fox (Kan.), 3 Pac. Rep. 320;
safe working place and machinery for Wilson r. Denver, S. P. & P. R. Co.
servant: Armour v. Hahu, 4 Sup. Ct. (Col.), 2 Pac. Rep. 1; Brown v. Atchi-
Rep. (U. S.) 433; Collyer v. Penn.syl- son, T. & S. F. R. Co. (Kan.), 1 Pac.
vania R. Co. (N. J.), 6 Atl. Rep. 437; Rep. COo; Gulf, C. & S. F. Ry. Co. v.
Canipl)ellv. Pennsylvania R.Co. (Pa.), Redeker (Tex.), 2 S. W. Rep. 527;
2 Atl. Rep. 489; Pittsburgh C. & St. L." Bogeuschutz v. Smith (Ky.), 1 S. W.
Ry. Co. V. Adams (Ind.), 5 N. E. Rep. Rep. 578.

1240 PROVINCK OF COUKT AND JUllY. [2 Thoilip. Tl'.,

cide it correctly.^ On the other hand, in an action a rail-
way company to recover damages for negligence resulting in the
death of a section foreman, who had charge and oversight of re-
pairs upon a certain part of tlic defendant's roadway, it has been
held error to instruct the jury that such foreman was not engaged
in the same line of duty with an engineer and fireman running
with the defendant's locomotive engine, and therefore not within
the rule Avhii-h exempts the common employer from liability to
one of his employes for damages resulting from the negligence
of a fellow-servant. Whether such persons were so operating
or consociating, is a question of fact for the jury, and not a
question of law for the court. ^ It is said that " the definition
of fellow-servant may be a question of law ; but it is always a
question of fact, to be determined from the evidence, whether
the particular case falls within the definition." ^

§ 1695. Whether the Servant knew that the Danger was
Extra Hazardous. — One who contracts to perform labor, or
render services for another, takes upon* himself those risks, and
only those, which are usually incident to the employment engaged
in. Where the master places one employe under the control
and direction of another, and the latter, in the exercise of the
authority so conferred, orders the former into a phice of unusual
danger and thus exposes him to extraordinary peril, of the exist-
ence and extent of which he is not advised, the employer is lia-
ble. In such a case it is a question of fact for the jury, whether,
under the circumstances shown by the evidence, the servant
knew, or in the exercise of ordinary care and prudence might
have known, that the danger was extraordinary .''

' .Johnson u. Bostou Tow-boat Co., evidence, it was held that there was

135 Mass. 20i). room for tlie jury to find that the serv-

2 Chicago &c. R. Co. u. Moranda, ant, when lie entered upon the service,

108 111.577; Indianapolis &c. R Co. u. did not know or appreciate 'tlie risk

MoriLieustern, lOG 111. 210. attending the work upon which he had

'' Indianapolis &c. K. Co. t?. Mor- entered, and tliat in tlie exercise of due

<renstern, supra; Chicago &c. R. Co. care he was not, as matter of law,

V. Muranda, supra. bound to knowor api)reciate the same:

* Tlionipson v. Chicago &c. R. Co., Ferren v. Old Colony R. Co. (Mass.),

H Fed. Rep. 5<;4. Case where, on the G Northeast. Rep. G08. The court

Tit. V, Ch. LI v.] NEGLIGENCE. 1241

§ 1696. Ill the Case of Injuries to Children from Danger-
ous Premises: Whether, under Circumstances, the Defendant
owed a duty to the Plaintiff. — In Penn.sylvaiiia it has been
said that cireumstances may beget duties which, under ordinary
circumstances, cannot be implied, and that, when such circum-
stances are shown to exist, the question arising therefrom is not
for the court, but for the jury.^ Accordingly, where a child
entered the defendant's premises, without even an implied per-
mission, and through a gate which had been but casually left
open, it was held that, as the company maintained so dangerous a
trap, in a place near to a highway, where children were wont
to congregate for their own amusement, the Jiny must determine,
in view of all the circumstances, whether it was bound to pro-
vide against a contingency such as that which happened.'- The
same rule was applied where a child was injured on the defend-
ant's premises by the falling of a privy wall, in a case where the
child was permissively upon the premises.^

§ 1697. Questions of Art and Skill : Generally for the
Jury. — The judge will not instruct the jury upon questions re-
lating to a particular art, as to which he could not give an opin-
ion without consulting a person skilled in such matters.^ The
reason of this is very plain. Such questions involve matters of
fact, which are generally proved by the testimony of persons
expert in the particular art or science, and, being matters of
fact, not of law, they are to be passed upon by the jury,^ Thus,
it is a question for a jury whether a numicipal corporation used
due care and skill in constructino; a sewer. ^

cite: Haley v. Case, 142 Mass. 31G; Pa. St. 332; Schilliug v. Aberuathy,

s. c. 7 N. E. Rep. 877; Russell y. Tilot- 112 Pa. St. 437, 442.

sou, 140 Mass. 201 ; s. c. 4 N. E. Rep. ^ Hydraulic Works Co. v. Orr, sup7-a.

231; Taylor v. Carew Manf. Co., 140 3 Schilling ?;. Aberuathy, swjjra.

Mass. 150; s. c. 3 N. E. Rep. 21; Leary * Howland v. Mariue lus. Co., 2

V. Boston & A. R. Co., 139 Mass. 580; Crauch C. C. (U. S.) 474.

s. c. 2 N. E. Rep. 115; Lawless v. Con- 5 Silvei thorn v. Fowle, 4 Jones L.

necticut R. R. Co., 13G Mass. 1; 2)08t, (X, C.) B&?.

§ l"31i. « McClure v. Red Wiug, 28 Minn.

1 Hydraulic Works Co. v. Orr, 83 186.

1242 PROVINCE OF COURT AND JURY. [2 Tliomp. Tl'.,

§ 1698. Malpractice of a Physician and Surgeon. — Reason-
ing obiter, to the conclusion that such a question must ordinarily
be one of fact, Mr. Justice Taunton said: " Take the case of an
action ajjainst a surireon, for neo;li<ience in the treatment of his
patient. What hiw can there possibly be in the question, whether
such and such conduct amounts to negligence? That must be
determined entirely by the jury." ^

§ 1699. Questions relating to Legal Practice. — "In some
cases," says the late Judge Taylor, " where the question relates
to matters of legal practice, as, for instance, if a sheriff be
charged with neglect of duty in not executing a writ, or if a
solicitor be sued for negligence in conducting an action, — the
judges would seem to be more competent than a jury to de-
cide whether the facts proved amount to a Avant of reasonable
care ; but even in such cases it seems that the province of the
judge is merely to inform the jury for what species or degree of
negligence the defendant is answerable, and what duty in the
particular case devolved upon him, either by the statute or
common law, or the practice of the court; and then, having done
this, he will leave the jury to consider the circumstances in evi-
dence, and to decide, first, whether the defendant has performed
his duty; and next, whether, in case of non-performance, the
neo-lect was of that sort or degree which was venial or culpable,
in the sense of not sustaining or sustaining an action." '^

§ 1700. Xegligence by an Attorney. — The early English
cases laid down the rule that an attorney was liable only for gross
negligence, called by the judges crasm negVtgentia or lata culpa. ^
But wh} - ordinary bailees or agents should be liable for ordinary
negligence, and a meinljcr of the legal profession should be ex-

1 Doorman r. .Jenkins, 2 Ad. & El. 2 Tayl. Ev. (8tli Enij. ed.), § 37.

2G1. For a case where it was held error, •'' Baikie ?'. Chandless, 3 Camp. 19,

under the peculiar circumstances, to per Lord Elleul)orough; Godefroy v.

submit to the jury the question what Dalton, (I Bing. 4C0, 4'((), 407, per

was proper for an architect to do, see Tindal, C. J.
Vigeaut». Scully, 20 Bradw. (111.) 437.

Tit. V, Ch. LI v.] NEGLIGENCE. 1243

cused from liability except for gross negligence, was never satis-
factorily shown, and the real reason must be ascribed to the partial-
ity of the judges for members of their own profession. In a later
case, it was laid down by Baron Alderson, in charging a jury, that
the question to be considered was whether the attorney had used
" reasonable skill and reasonable care," and, under the facts in
evidence, he left it for them to decide the question.^ While this
question has been decided as a question of law upon established
facts,"'* yet it has been the more common practice in England to
submit it, as a question of fad, to the jury, under the judge's di-
rection as to the law. This was done where the question was
whether an attorney had been negligent in. not complying with
the practice of the court. ^ So, where an attorney for the plaint-
iff suffered the cause to be called for trial, without previously
ascertaining whether a material witness, whom the plaintiff had
undertaken to bring into court, had arrived, in consequence of
which the plaintiff was nonsuited, — it was held, in an action
against him by his client, grounded upon negligence, that it was
properly left to the jury to say whether he had used reasonable
care in conducting the cause ; and the jury having found that he
had not, the court refused to disturb the verdict.* On the other
hand, it was ruled, as matter of law, that the conduct of an attor-
ney who had charge of the defense of the plaintiff's action, in not
producing the proper evidence of the entry of a judgment, where-
bv his client was nonsuited, was not actionable neglio-ence.^
The court proceeded upon the ground that what had been done
might be attributable to an error of judgment merely, not involv-
ing a want of professional skill. Tindal, C. J., said: "It
would be extremely difficult to define the exact limit by which
the skdl and diligence which an attorney undertakes to furnish in
the conduct of a cause is bounded ; or to trace precisely the divid-
ing line between that reasonable skill and diligence which appears
to satisfy his undertaking, and that crassa negligentia ovlata culpa,

1 Shilcock V. Passmau, 7 Car. & P. ^ Huuter v. Caldwell, 10 Ad. & El.
289. (X. s.) 09.

2 Godefroy v. Dalton, (J Biug. ^ Reecer. Rigliy, 4 Barn. & Aid. 202.
4G0. 5 Godefroy v. Daltou, 6 Biug. 400.

1244 PKOviNCE OF COURT AND JUKY. [2 Thoiiip. Tr.,

mentioned in some of the cases, for Avliicli he is undoubtedly re-

sponsible. The eases, however, which have been cited and com-
mented on at the bar,i ai)pear to establish, in general, that he
is liable for the consequences of ignorance or non-observance of
the rules of practice of this court; for the want of care in the
preparation of the cause for trial, or of attendance thereon with his
witnesses ; and for the mismanagement of so much of the conduct
of a cause as is usually and ordinarily allotted to his department
of the profession; whilst, on the other hand, he is not answera-
ble for error in judgment upon points of new occurrence, or of

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