Judgment for the plaintiff _per totam curiam_.
This was an action on the case brought by the plaintiff, a shoemaker, against the defendant, whom he employed as a surgeon, for negligently, ignorantly, and unskilfully reducing a dislocated elbow and fractured arm of the plaintiff, of which he had undertaken the cure. The cause was tried before _Heath_ J. at the last assizes at _Hertford_; and a verdict having been given for the defendant under the direction of the learned Judge; that direction was now impeached, and a rule _nisi_ for setting aside the verdict and granting a new trial was moved for by _Gurney_, upon the ground that there was evidence laid before the jury of the _unskilful_ treatment of the plaintiff by the defendant; but that they were told by the learned Judge, that unless _negligence_ were proved, they could not examine into the _want of skill_: and the evidence, he now admitted, did not substantiate the charge of _negligence_, though it proved the want of skill. And he referred to _Slater_ v. _Baker_[178], to shew that an action lay against a surgeon for ignorance and unskilfulness in his profession: and to _Bull, N. P. 73._ where the general rule is laid down, that in all cases where a damage accrues to another by the negligence, ignorance, or misbehaviour of a person in the duty of his trade or calling, an action on the case will lie: as if a farrier kill my horse by bad medicines, or refuse to shoe, or prick him in the shoeing.
The Court granted a rule _nisi_. And now, upon the Judge’s Report being read, the case appeared to be this:
The plaintiff’s brother-in-law proved, on his behalf, that on the 2d of _April_ 1805, the defendant attended the plaintiff, who had fallen from a horse, and told the defendant that his arm was broken: the defendant said that he thought the arm, which was swollen, was not broken, and applied vinegar to it, and bound it with tape. That the plaintiff was under the defendant’s care for ten weeks without being cured: he could not bend his arm or work at his trade. That he then applied to Mr. _Kingston_, another surgeon, and after some time could work, and put his arm to his head. On cross-examination the same witness proved that the defendant was first sent for at night, and came directly; that he regularly attended the plaintiff every day but one till the latter applied to Mr. _Pidcock_, another surgeon, who, about nine or ten days after the accident, attended and assisted with the defendant in setting the elbow. Mr. _Kingston_, the surgeon, then proved that in _July_ 1805 the plaintiff was brought to him a cripple in his arm, one bone of which was broken obliquely below the elbow. That the plaintiff’s arm was almost straight; he could not turn his wrist, and had no motion in his elbow. That the witness broke the callous and set it again, and made (what the witness himself described as) a very fine cure, which was spoken of about the country. He imputed the failure of the defendant in his attempt to cure the plaintiff to _negligence and carelessness_: an apprentice boy (he said) might have known better: that the bone might have been set within five hours after the accident; though he admitted that the swelling, if much, must first be reduced, which might take a fortnight. And he recommended the plaintiff to bring an action. He also spoke to a conversation with the defendant, who considered it as a very difficult dislocation to reduce; and said that he would make a compensation to the plaintiff. The learned Judge told the jury that the gist of the action was negligence; of which direct evidence might be given; or it might be inferred by the jury, if the defendant had proceeded without any regard to the common ordinary rules of his profession, _That unskilfulness alone, without negligence, would not maintain the action_. And that he was at a loss to state to the jury what degree of skill ought to be required of a village surgeon. But that, whether or not his direction were accurate in this respect, at any rate the witness _Kingston_ imputed only _negligence_ and _carelessness_ to the defendant and _Pidcock_, in not discovering the fracture of the bone of the arm when they reduced the dislocated elbow; which there was no doubt was properly reduced: and that considering all the circumstances of the case, he did not think that such gross negligence was imputable to the defendant as to make him liable in damages to the plaintiff. The report concluded by stating that the jury found a verdict for the defendant, much to the Judge’s satisfaction; who intimated that the vaunting language of the witness _Kingston_ must have diminished his credit with the jury.