vent travelers from straying out of the highway. Sparhawk v. City of Salem, 1 Allen, 30; Chapman v. Cook, 10 R. I. 304; 14 Am. Rep. 686; Sykes v. Pawlet, 43 Vt. 446; S. C., 5 Am. Rep. 295. But they are bound to erect fences or railings at places which would otherwise be unsafe or inconvenient for travelers exercising ordinary care. Collins v. Dorchester, 6 Cush. 396. The law requires highways to be made safe and convenient for travelers, and where in traveling near the edge of the way there is danger of being precipitated down an embankment, or into an excavation, or into water, a railing is necessary to render traveling on the highway safe. Without it there would be immediate danger, and for this reason an action is given for the want of a sufficient railing as well as for a defect or want of repair. Kimball v. Bath, 38 Me. 219; Norris v. Litchfield, 35 N. H. 271; Chicago v. Gallagher, 44 Ill. 295; Ilyatt v. Rondout, 44 Barb. 385; Ward v. Town of North Haven, 43 Conn. 148; Woods v. Groton, 111 Mass. 357. See Пley v. Philadelphia, 9 Phil. (Penn.) 166; Hey v. Philadelphia, 81 Penn. St. 44; 22 Am. Rep. 733. In general, whether a railing or a light at any part of a road is necessary, is a question of fact for the jury. Leicester v. Town of Pittsford, 6 Vt. 245; Iloufe v. Town of Fulton, 29 Wis. 296; S. C., 9 Am. Rep.

568.

In New York, a highway commissioner negligently left a highway bridge which he had constructed, in a dangerous condition, and it was held that the commissioner having undertaken to build the bridge, was liable for negligence in its construction, to those injured without fault, although sufficient funds had not been put into his hands for the purpose of building. Rector v. Pierce, 3 N. Y. Sup. Ct. (T. & C.) 416. See, also, Lament v. Haight, 44 How. 1.

To render a town or city liable for an injury sustained on a highway it must have been sustained by a traveler (see Smith v. City of Leav enworth, 15 Kan. 81), and the defect of the way, either alone or combined with some matter of pure accident for which the traveler was not in fault, must have been the sole cause of the injury. Hawes v. Fox Lake, 33 Wis. 438; Baldwin v. Greenwoods Turnpike Co., 40 Conn. 238; 16 Am. Rep. 33. If the negligence of the traveler contributes, in conjunction with the defect, to produce the injury, he cannot recover any damages he may have sustained therefrom. Fallon v. City of Boston, 3 Allen, 38; Farrar v. Greene, 32 Me. 574. But a traveler on a highway is only bound to exercise ordinary care and circumspection, according to the circumstances of the case, to avoid injury from defects in such highway, and he need not show such care as men of great caution would have exercised, in order to entitle himself to

recover for injuries received in consequence of such defects. Houfe v. Town of Fulton, 29 Wis. 296; S. C., 9 Am. Rep. 568. Foot passengers, and those driving in carriages, have equal rights in the streets of a city, and both are required to exercise that degree of care and prudence which the circumstances of the case demand. Brooks v. Schwerin, 54 N. Y. (9 Sick.) 343.

Where a driver attempts to pass another on a public road, he does so at his peril. At least, he must be responsible for all damages which he causes to the one whom he attempts to pass, and whose right to the proper use of the road is as great as his, unless the latter is guilty of such recklessness or even gross carelessness as would bring disaster upon himself. Avegno v. Hart, 25 La. Ann. 235; 13 Am. Rep. 133. See ante, 665, § 10. But it is held to be the duty of towns in Vermont, to provide for the safety of travelersiin passing teams going in the same direction, and to construct and keep their highways, at places which naturally invite the attempt to pass, reasonably safe for that purpose. Mochler v. Town of Shaftsbury, 46 Vt. 580; S. C., 14 Am. Rep. 634.

Nor is the duty confined to cases of absolute necessity on the part of the traveler, but it has been extended to the case of one who attempted to pass a team merely for the purpose of keeping in company with a companion who had driven ahead. Id. And see Damon v. Scituate, 119 Mass. 66; 20 Am. Rep. 315.

Only the same degree of care to avoid accidents is required of one passing along the street by night as by day, although in the former case this may call into exercise greater caution and watchfulness. Stier v. City of Oskaloosa, 41 Iowa, 353. The streets and sidewalks are for all conditions of people, and all have the right, in using them, to assume that they are in good condition, and to regulate their conduct upon that assumption. Thus a person may walk or drive in the darkness of the night, relying upon the belief that the corporation has performed its duty, and that the street or the walk is in a safe condition. So, one whose sight is dimmed by age, or a near-sighted person whose range of vision was always imperfect, or one whose sight has been injured by disease, is each entitled to the same rights, and may act upon the same assumption. Davenport v. Ruckman, 37 N. Y. (10 Tiff.) 568; affirming S. C., 10 Bosw. 20; Peach v. City of Utica, 10 Hun (N. Y.), 477. Though greater care is, perhaps, required of a person whose sight is defective, than is required of persons of good sight. Winn v. Lowell, 1 Allen, 177.

To maintain an action for damage sustained from the insufficiency of a road or bridge, it is not enough for the plaintiff to show that the road was out of repair, and that an injury has been sustained, but he

must show prima facie, at least, that the injury was occasioned by the defect. Lester v. Town of Pittsford, 7 Vt. 158. And see Church v. Cherryfield, 33 Me. 460; Collins v. Dorchester, 6 Cush. 396; Sher. man v. Kortright, 52 Barb. 267; Quinlan v. City of Utica, 11 Iun (N. Y.), 217. See post, tit. Ways.

§ 15. Notaries public. A notary public is an officer, known to the law merchant, and, of consequence, to the common law, of which it is a part. And the creation of the office of notary public by statute authorizes the officer to act in the form prescribed by the common law, if no other form is prescribed which can be followed. Kirksey v. Bates, 7 Port. (Ala.) 529. See Commercial Bank of Kentucky v. Varnum, 49 N. Y. (4 Sick.) 269. In this country, the chief functions of a notary are, to note and protest bills of exchange, to note and draw up ship protests, and all other protests which are customary according to the usage of merchants. Shearm. & Redf. on Neg., § 423. And see Parker v. Lowrie, 6 Watts & S. (Penn.) 507; Williamson v. Turner, 2 Bay (S. C.), 410; Schneider v. Cochrane, 9 La. Ann. 235. In addition, notaries are generally authorized to administer oaths and affirmations, and to take acknowledgments of deeds and other instruments. See Bours v. Zachariah, 11 Cal. 281; Ex parte Mallinkrodt, 20 Mo. 493; Crone v. Angell, 14 Mich. 340; Adams v. Wright, 14 Wis. 408. A notary holds himself out to the world as a person competent to perform the business connected with his office. By accepting the office, and entering upon the discharge of the duties, he contracts with those who employ him that he will perform such duty with integrity, diligence, and skill. Fogarty v. Finlay, 10 Cal. 239. And, like other ministerial officers, he is liable in damages to any person specially injured by his omission to perform, or by his unskillful performance of a ministerial duty. See Kinnard v. Willmore, 2 Heisk. (Tenn.) 619; Hover v. Barkhoff, 44 N. Y. (5 Hand) 113; Sawyer v. Corse, 17 Gratt. (Va.) 230. So, the statute prescribing the powers and duties of notaries, generally declare their liability to a private action for damages resulting from negligence. See Fogarty v. Finlay, 10 Cal. 239; 2 N. Y. Rev. Stat. 284, § 48.

In the protesting of bills of exchange, notaries are usually employed by bankers, and it is the settled law in many of the States that a banker who thus employs a competent notary is not liable for the notary's neglect to perform his duty. See Bowling v. Arthur, 34 Miss. 41; Jackson v. Union Bank, 6 Harr. & J. (Md.) 146; East Haddam Bank v. Scovill, 12 Conn. 303; Stacy v. Dane County Bank, 12 Wis. 629; Fabens v. Mercantile Bank, 23 Pick. 330; Baldwin v. Bank of Louisiana, 1 La. Ann. 13. But see Thompson v. Bank of

South Carolina, 3 Hill (S. C.), 77; Allen v. Merchants Bank, 22 Wend. 215; Ayrault v. Pacific Bank, 47 N. Y. (2 Sick.) 570 ; S. C., 7 Am. Rep. 489. In the case last cited, a bank having received promissory notes for collection when due, employed a notary to present them and to give notice to the proper parties, and the bank was held liable for any negligence of the notary in omitting to demand payment of the maker, or to give notice of protest to the indorsers. See ante, Vol. 1, 516, 517.

In cases of foreign bills of exchange, it is a well-settled rule, that there must be a protest of the bill by a notary public, in all places where such officer is at hand. And it is likewise held that the presentment and demand must be made in person by the same notary who protests the bill; and that it cannot be done by a clerk, nor by any other person as his agent, though he be also a notary. Sacrider v. Brown, 3 McLean (C. C.), 481; Chenowith v. Chamberlain, 6 B. Monr. (Ky.) 60; Donegan v. Wood, 49 Ala. 242; S. C., 20 Am. Rep. 275; Onondaga Bank v. Bates, 3 Hill (N. Y.), 53; Commercial Bank v. Barksdale, 36 Mo. 563. The protest is to be evidence of facts stated in it, of which the notary is supposed to have personal knowledge, and credit is given to his official statements by the commercial world on the faith of his public and official character. Id.; Warnick v. Crane, 4 Denio, 460.

See

In England, it is customary for the clerks of notaries to present bills, whether foreign or inland, for acceptance or payment, the notary afterward noting the presentment and preparing his protest. Brooke, Office of Notary (3d ed.), 71, 128. And it is held in New York that, in an action against a notary for neglect to make presentment and demand, evidence that it is the common and universal usage at the place where the bill was payable for notaries' clerks to make such presentment and demand is proper and admissible. Commercial Bank of Kentucky v. Varnum, 49 N. Y. (4 Sick.) 269.

A notary is, in general, liable for a loss occasioned by his negligence in failing to discharge his duty in protesting and delivering or mailing notices of protest as required by law. But in order to fix such liability, the loss must be shown to have been on account of the want of skill or diligence on the part of the notary. He is not liable in a matter in which judicial construction was necessary to enable him to know what was his duty. Neal v. Taylor, 9 Bush (Ky.), 380. So, a notary, to whom a draft is given for protest, is bound to follow the instructions given him; it is not his duty to determine whether or not the draft should be protested on a certain day. He is not guilty of negligence in proceeding according to the instructions of the bank

giving him the draft to protest, and is not, therefore, liable to any person for any damage resulting from the presentation of the draft on the wrong day. Commercial Bank of Kentucky v. Varnum, 7 Hun (N. Y.), 236. Nor can a party recover from a notary for having neglected to protest a note legally, when, by his own laches, he has put it out of his power to subrogate the notary to his rights as they existed at the date of protest. Emmerling v. Graham, 14 La. Ann. 389. And see Franklin v. Smith, 21 Wend. 624; Reed v. Darlington, 19 Iowa, 349.

16. Physicians and surgeons. In England, before the passage of the Medical Act (Stat. of 21 & 22 Vict., c. 90), a physician could not maintain an action for his fees (Chorley v. Bolcot, 4 T. R. 317); though it was held that he might recover for professional services on a special contract. Veitch v. Russell, 3 G. & D. 198; S. C., 3 Q. B. 928; Carr. & M. 362; Att.-Gen. v. Royal College of Physicians, 1 Johns. & H. 561. He was supposed to render his services from purely philanthropic motives, and he was, accordingly, held liable for his negligence only to the extent to which one is liable who renders a gratuitous service. See Gibbon v. Budd, 2 Hurlst. & Colt. 92. But a surgeon or apothecary has always been held subject to the usual rules of liability. See Seare v. Prentice, 8 East, 348; Slater v. Baker, 2 Wils. 359; Kanneu v. McMullen, Peake, 59.

No such distinction has ever existed in this country, and physicians of all grades may maintain actions for their fees (Judah v. McNamee, 3 Blackf. [Ind.] 269; Alder v. Buckley, 1 Swan [Tenn.], 69); and a physician or surgeon, in the performance of his professional duties, is liable for all injuries resulting from the want of ordinary diligence, care and skill. Graham v. Gantier, 21 Tex. 111; McNevins v. Lowe, 40 Ill. 209; Craig v. Chambers, 17 Ohio St. 253; Hathorn v. Richmond, 48 Vt. 557; Hesse v. Knippel, 1 Mich. (N. P.) 109. To render him liable, it is not enough that there has been a less degree of skill than some other medical men might have shown, or a less degree of care than even he himself might have bestowed; nor is it enough that he himself acknowledged some degree of want of care; there must have been a want of competent and ordinary care and skill, and to such a degree as to have led to a bad result. Rich v. Pierpoint, 3 Fost. & F. 35. And see Wood v. Clapp, 4 Sneed (Tenn.), 65; West v. Martin, 31 Mo. 375. Where one holds himself out to the public as a physician and surgeon, the law implies a promise and a duty on his part that he will use reasonable skill and diligence in the treatment, and for the cure of those who may employ him. Patten v. Wiggin, 51 Me. 594; Branner v. Stormont, 9 Kaņs. 51; Carpenter v. Blake, 50 N. Y. (5 VOL. IV.-86