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But he does not undernor does he undertake Lanphier v. Phipos,

Sick.) 696; Reynolds v. Graves, 3 Wis. 416. take, at all events, that he will perform a cure, to use the highest possible degree of skill. 8 Carr. & P. 475; Haire v. Reese, 7 Phil. (Penn.) 138. If more than reasonable skill and diligence is expected, it must be expressly stipulated for. McCandless v. Mc Wha, 22 Penn. St. 261. But in judging of the degree of skill required in any given case, it is held that regard is to be had to the advanced state of the profession at the time. Id.; Smothers v. Hanks, 34 Iowa, 286; S. C., 11 Am. Rep. 141; Almond v. Nugent, 34 Iowa, 300; S. C., 11 Am. Rep. 147. The physician is bound to be up to the improvements of the day, for the patient is entitled to the benefit of these increased lights. Id. But he cannot try experiments with his patients to their injury. Patten v. Wiggin, 51 Me. 594.

It has been said that when the service is rendered gratuitously the physician is only liable for gross negligence. Ritchey v. West, 23 Ill. 385. But a person injured by the negligence of a medical man is entitled to his remedy against him for the injury, although the contract for the services of the medical man was made with a friend of the person neglected. Gladwell v. Steggall, 5 Bing. N. C. 733.

It is competent for a physician and his patient to enter into such a contract as they think fit, limiting the attendance to a longer or shorter period, or to a single visit if they please; and if there be no such limitation, the physician may discontinue his attendance at his election, by giving reasonable notice of his intention to do so. But if he be sent for at the time of an injury by one whose family physician he has been for years, the effect of his responding to the call will be an engagement to attend to the case so long as it requires attention, unless he gives notice to the contrary, or is discharged by the patient; and he is bound to use ordinary care and skill, not only in his attendance, but in determining when it may be safely and properly discontinued. Ballou v. Prescott, 64 Me. 305. And see Todd v. Myers, 40 Cal. 357.

Although a physician or surgeon assumes to exercise the ordinary care and skill of his profession, and is liable for injuries resulting from his failure to do so, yet, if his patient neglects to obey the reasonable instructions of the physician or surgeon and thereby contributes to the injury complained of, he cannot recover for such injury. Geiselman v. Scott, 25 Ohio St. 86. See, also, McCandless v. Mc Wha, 22 Penn. St. 261; Haire v. Reese, 7 Phil. (Penn.) 138.

The law also, requires of a dentist a reasonable degree of skill and care in his professional operations, but he will not be held answerable

for injuries arising from his want of the highest attainments in his profession. Simonds v. Henry, 39 Me. 155. And it is held that a dentist or physician using chloroform or other anæsthetic agent is only bound to look to the natural and probable effects, and is not answerable for results arising from the peculiar condition or temperament of the patient, of which he has had no knowledge. Boyle v. Winslow, 5 Phil. (Penn.) 136. It has, however, been said, that a physician about to administer an anaesthetic, is bound to inform himself as to the condition of the patient's heart, lungs or other organs, which, if diseased, would warn a prudent physician against the administration of that beneficent agency. Shearm. & Redf. on Neg., § 439. And see Jones v. Fay, 4 Fost. & F. 525.

In an action against a physician or surgeon for an injury sustained by reason of alleged unskillful and careless treatment, the burden of proof is on the plaintiff, to show a want of proper knowledge and skill; but this may be shown by simple evidence of the mode of treatment pursued by the defendant in the case in question. Leighton v. Sargent, 31 N. H. 119. See Baird v. Morford, 29 Iowa, 531. In such an action, the plaintiff is not entitled to recover any thing on account of pain and suffering caused by the injury, but only for such additional pain and suffering as is produced by the negligence or want of skill of the defendant in the treatment. Wenger v. Calder, 78 Ill. 275.

That a husband may recover damages from a physician for unskillful and negligent treatment of his wife, by which he has been subjected to expense and deprived of her society, see Mowry v. Chaney, 43 Iowa, 609.

It is the duty of druggists to know the properties of the medicine which they vend, and to employ such persons as are capable of discriminating and compounding according to prescription. Fleet v. Hollenkemp, 13 B. Monr. (Ky.) 227. And if an apothecary's clerk, in filling a physician's prescription, delivers a poison instead of a harmless drug, through gross negligence, whereby the person taking it is caused great suffering and serious injury, the latter has a right of action at common law, for damages against the apothecary. Hansford v. Payne, 11 Bush (Ky.), 380; Norton v. Sewall, 106 Mass. 143; S. C., 8 Am. Rep. 298; ante, vol. 2, 103, 475.

It has been held that paper may be removed from the walls of rooms in which small-pox patients have been sick, if in the opinion of the attending physician it has become so soiled and besmeared with small-pox virus as to make its removal necessary to prevent the spread of smallpox; and an action cannot be sustained by the owner of the building

against a physician for advising or directing such removal. Seavey v. Preble, 64 Me. 120.

§ 17. Railroads. See post, tit. Railroads. As to their liability for negligence in the carriage of goods or passengers, see ante, Vol. 2, tit. Carriers. See ante, 663, § 7 of the present article, and ante, tit. Master and Servant. As to liability for negligence in use of fire, see ante, 669, § 12.

When there exists no statutory regulations defining the duties of railway companies in respect to fencing, they come within the commonlaw rule, and are under no obligations to make or maintain fences between their road and the adjoining lands. Northeastern R. R. Co. v. Sineath, 8 Rich. (S. C.) Law, 185; Toledo R. R. Co. v. Wickery, 44. Ill. 76; Lord v. Wormwood, 29 Me. 282; Knight v. New Orleans, etc., R. R. Co., 15 La. Ann. 105; Coy v. Utica, etc., R. R. Co., 23 Barb. 643; Vandergrift v. Delaware R. R. Co., 2 Houst. (Del) 297. See Macon, etc., R. R. Co. v. Baber, 42 Ga. 305; Mobile, etc., R. R. Co. v. Wil liams, 53 Ala. 595. But a railway company is bound to use every reason. able care to prevent cattle from straying on the line of its road. Buxton v. Northeastern Railway Co., L. R., 3 Q. B. 549. And if cattle are upon the track, whether lawfully or unlawfully there, and are injured or killed through the inexcusable negligence of the company's servants, the company will be held liable. Indianapolis, etc., R. R. Co. v. Caldwell, 9 Ind. 397; Aycock v. Wilmington, etc., R. R. Co., 6 Jones' (N. C.) L. 231; Louisville, etc., R. R. Co. v. Ballard, 2 Metc. (Ky.) 177; Trout v. Va. & Tenn. R. R. Co., 23 Gratt. 619; Cleaveland v. Chicago, etc., R. R. Co., 35 Iowa, 220. See North. Penn. R. R. Co. v. Rehman, 49 Penn. St. 101; Galpin v. Chicago, etc., R. R. Co., 19 Wis. 604; Quimby v. Vermont Central R. R. Co., 28 Vt. 387; Mobile etc., R. R. Co. v. Hudson, 50 Miss. 572.

Railroad companies are now generally required by statute to fence their tracks, and to erect and maintain cattle guards at road crossings, in default of which the company is made responsible for all injuries inflicted by its agents or engines upon animals, whether by negligence or not. See Staats v. Hudson River R. R. Co., 33 How. (N. Y.) 139; S. C., 4 Abb. Ct. App. 287; Purdy v. New York, etc., R. R. Co., 61 N. Y. (16 Sick.) 353; Gorman v. Pacific R. R. Co., 26 Mo. 441; Norris v. Androscoggin R. R. Co., 39 Me. 273; McCall v. Cham berlain, 13 Wis. 637; Buxton v. Northeastern Railway Co., L. R., 3 Q. B. 549; Pittsburgh, etc., Railway Co. v. Methven, 21 Ohio St. 586. And the liability of the company commences as soon as it takes possession of the land upon which the road is to be laid (Holden v. Rutland, etc., R. R. Co., 30 Vt. 297; Gardner v. Smith, 7 Mich. 410. See

Toledo, etc., R. R. Co. v. Miller, 45 Ill. 42); and it extends to all kinds of animals that would be kept from the track by an ordinary fence, without reference to the question whether they are large enough to throw a train off the track when run over by it. Indianapolis, etc., R. R. Co. v. Marshall, 27 Ind. 300. And see Bessant v. Great Western Railway Co., 8 C. B. (N. S.) 368; Chicago, etc., R. R. Co. v. Utley, 38 Ill. 410. But a fence need not be so constructed as to keep out dogs. Wilson v. Wilmington, etc., R. R. Co., 10 Rich. (S. C.) L. 52.

The duty to make involves the duty to maintain fences, gates and cattle guards. If these are suffered to go to decay, or by accident are broken down so as to allow the passage of cattle, etc., through or over them, and are not repaired within a reasonable time; or if they are opened, and are allowed to remain open unnecessarily, the railway company is absolutely liable for injuries to cattle entering through the breach. Bartlett v. Dubuque, etc., R. R. Co., 20 Iowa, 188; McDowell v. New York Central R. R. Co., 37 Barb. 195; Brown v. Milwaukie, etc., R.R. Co., 21 Wis. 39; Spinner v. New York Central, etc., R.R.Co., 6 Hun (N.Y.), 600. But reasonable or ordinary diligence only is required of railroad companies in this respect (Illinois Central R. R. Co. v. Swearingen, 47 Ill. 206; Robinson v. Grand Trunk Railway Co., 32 Mich. 322); and they are allowed a reasonable time within which to make repairs. Id.; Toledo, etc., R. R. Co. v. Daniels, 21 Ind. 256; Antisdel v. Chicago, etc., R. R. Co., 26 Wis. 145; S. C., 7 Am. Rep. 44. So, as it would be impracticable for a railroad company to keep a constant watch of every gate and every rod of fence along the line of its road, it is but reasonable to require of the proprietors along the road, when defects have actually come to their knowledge, to make suitable efforts to apprise the company of such defects; and if they fail to do so, they cannot recover for any damage which they may sustain by reason of such defects (Poler v. New York Central R. R. Co., 16 N. Y. [2 Smith] 476), unless the defects were known to some agent of the company whose duty it was to communicate the information to the proper officers having charge of such matters. Indianapolis, etc., R. R. Co. v. Truitt, 24 Ind. 162. And see Davis v. Chicago, etc., R.

R. Co., 40 Iowa, 292.

In England, and in some of the American States, the benefit of the statutes is confined to the owners or occupants of land immediately adjoining a railroad; and hence, the company is not bound to fence out cattle straying upon a highway running next to and parallel with the railroad (Ricketts v. East India Docks, etc., Railway Co., 12 C. B. 160; Towns v. Cheshire R. R. Co., 21 N. H. 363; Eames v. Salem, etc., R. R. Co., 98 Mass. 560; Jackson v. Rutland, etc., R. R. Co., 25

Vt. 150); but it is otherwise as it respects cattle lawfully upon the highway. Midland Railway Co. v. Daykin, 17 C. B. 126. It is the settled law under the statute of Vermont, that if cattle are unlawfully on the land adjoining a railroad, the owner cannot recover for injuries sustained by reason of their escape through a defective fence upon the road. Bemis v. Connecticut, etc., R. R. Co., 42 Vt. 375; S. C., 1 Am. Rep. 339. And so, under the statute of New Hampshire. Mayberry v. Concord, etc., R. R. Co., 47 N. H. 391; Giles v. Boston, etc., R. R. Co., 55 id. 552. But in most of the States the benefit of the statutes extends to all owners of cattle, although they are not adjoining proprietors, and it does not appear how or whence the cattle came upon the road. Brown v. Providence, etc., R. R. Co., 12 Gray, 55; New Albany, etc., R. R. Co. v. Aston, 13 Ind. 545; Isbell v. New York, etc., R. R. Co., 27 Conn. 393; Purdy v. New York, etc., R. R. Co., 61 N. Y. (16 Sick.) 353. Under the statutes of Alabama a railroad company is liable for injuries to stock when they result from the negligence of its servants or agents, whenever and wherever it may occur. If the injury occurs at or near any public road crossing, or any regular depot or stopping-place, or within the corporate limits of any town or city, or because of an obstruction which could or ought to have been perceived, no degree of diligence will excuse the company from liability, unless all the requirements of the statute have been observed. In either case, the injury being known, the burden of proof is on the railroad company to acquit itself of negligence, or to show a compliance with the statute. Mobile, etc., R. R. Co. v. Williams, 53 Ala. 595.

The owner of land adjacent to a railway, who has agreed to erect and keep in repair fences between his property and the road cannot recover for injuries to stock occasioned by want of a fence, or for defects therein. Terre Haute, etc., R. R. Co. v. Smith, 16 Ind. 102; Warren v. Keokuk, etc., R. R. Co., 41 Iowa, 484. But such a contract between the land-owner and the company does not release the latter from its liability to others than the owner, although it may look to him for indemnity for losses occasioned by his failure to construct or repair the fence. Id. Where a railroad company binds itself by contract with the owner of the land, to fence its road through his land, the company is not liable, under such a contract, for inju ries suffered by cattle, unless its servants have been negligent in some other respect than in the omission to maintain the fence. Drake v. Philadelphia, etc., R. R. Co., 51 Penn. St. 240; Joliet, etc., R. R. Co. v. Jones, 20 Ill. 221; Fernow v. Dubuque, etc., R. R. Co., 22 Iowa, 528. It may be added that a mere grant by a land-owner, of a right of way to a railroad company, does not impose the right to fence

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