nothing to mislead the plaintiff, but he chooses of his own. motion to put himself in danger, of course the negligence is his own (s). The mere fact of a window slipping down is not evidence of negligence, as it seems (t). Not whistling before coming to a station where persons are in the habit of crossing on the level would, it seems, be evidence of negligence (u). As to not fencing level crossings for the protection of cattle, see Owners of Real Property, Ch. II. s. 2, p. 39; and as to level crossings, as respects passengers crossing, see Owners of Real Property, Chap. III. s. 2, p. 80, 82, 97, 98. SECTION IX. Innkeepers. An innkeeper is not an insurer of the goods of his guest, but is liable for negligence (a), and is bound to take something more than ordinary care of his guest and his guest's goods (y). It is in his character as innkeeper that he is required to exercise such diligence; but if he is a mere bailee (≈), or a mere lodging-house keeper (a), he would only be liable for ordinary negligence. The fact of the loss of the goods is prima facie evidence (3) See Met. Ry. Co. v. Jackson, L. R. 3 App. Cas. 193; 47 L. J. C. P. 303; and see post, Ch. VI., Contribu tory Negligence. (t) Murray v. Met. District Ry. Co., 27 L. T. 762. (u) Dublin, W. & W. Ry. Co. v. Slattery, L. R. 3 App. Cas. 1164, per Lord Cairns. (x) Calye's Case, 1 Sm. L. C., 5th ed. 102; Dawson v. Chamney, 5 Q. B. 164. As to innkeeper's liability to persons coming to the inn, but not to deal with him, see Oxford v. Prior, (z) Hyde v. Mersey Nav. Co., 5 T. R. 389; Williams v. Gesse, 3 Bing. N. C. 849. (a) Bac. Ab. Inns, C. 5; Parkhurst v. Foster, Salk. 388; see Dansey v. Richardson, 3 E. & B. 144; Holder v. Soulby, 8 C. B. N. S. 254. of negligence (b). The Act of God, or the Queen's enemies, is, as in the case of carriers at common law, a good defence (c). So, also, is the contributory negligence of the plaintiff (d). The innkeeper is liable for the theft of his servant from a guest at his inn (e); but not for burglary or robbery with violence, it is said, where he can show that the force which occasioned the loss was truly irresistible (ƒ). The liability of the innkeeper, as such, will continue, it seems, for some reasonable time after the departure of a guest who has left his goods to be sent for with the landlord's consent (g); and it is certain that his liability continues during the temporary absence of his guest (h). The 26 & 27 Vict. c. 41, s. 1, enacts that no innkeeper shall be liable to make good to any guest any loss of or injury to goods or property brought to his inn (i) to a greater amount than the sum of £30, except in the following cases: (1) where such goods or property shall have been stolen, or lost, or injured, through the wilful act, default, or neglect of such innkeeper, or any servant in his employ: (2) where such goods or property shall have been deposited expressly for safe custody with such innkeeper (k). (b) Dawson v. Chamney, 5 Q. B. 164. (c) Richmond v. Smith, 8 B. & C. 9; and so is "inevitable accident," see Wharton, s. 678, 553, and as to Act of God, see ante, p. 104, note (c). (d) Farnworth". Packwood, 1 Stark. 249; Burgess v. Clements, 4 M. & S. 306; Armistead v. Fuller, 17 Q. B. 261; Richmond v. Smith, 8 B. & C. 9; Kent v. Shuckard, 2 B. & A. 803; The guest must himself have used ordinary care, see Cashill v. Wright, 6 E. & B. 891; see also Oppenheim v. White Lion Hotel Co., L. R. 6 C. P. 515; 40 L. J. C. P. 231. (e) See Morgan v. Ravey, 6 H. & N. 265; and see Calye's Case, 8 Co. 32. (f) Jones on Bailments, 96. Various other authorities are cited to prove that an innkeeper is not liable for a loss of his guest's goods by burglary, &c., in Wharton, s. 677, but they do not appear to bear out the text. (g) See per Brown, C.J., in Adams v. Clem, 41 Ga. 67. (h) Baker v. Day, 2 H. & C. 171. (i) Not being a horse or other live animal, or any gear appertaining thereto, or any carriage. (k) There is a proviso that the innkeeper may require the goods to be deposited in a sealed box, and by s. 2 he is not entitled to the benefit of the Act if he refuses to receive the goods for safe custody, or by s. 3, if he does not cause a copy of the 1st section of the Act to be put up in the inn. Such copy should be a correct copy, see Spice v. Bacon, L. R., 2 Ex. D. 463 C. A.; 46 L. J. Ex. 713. SECTION X. Physicians, &c. It cannot be predicated of any act that it is per se negligent; it is only so if it is a breach of duty (l). The first question therefore is, what is the duty which the person had to perform? Some persons have more difficult duties to perform than others. If they neglect those duties they are the more to blame, because they are bound to bring more skill and care to their execution; but, on the other hand, the duties being more difficult, they may more easily fail notwithstanding the utmost care. When due allowance has been made for the difficulty of performing the duty, any negligence which has prevented its performance becomes of a grave character because by undertaking to perform the difficult duty the performer has undertaken to use superior care and skill. The question is, has the high duty which has been undertaken been reasonably fulfilled (m)? It is also to be borne in mind that in the case of medical men not only is the duty difficult, but the consequences of neglect may be disastrous. Physicians could not at common law recover their fees (n) unless there was an undoubted special contract (o). But now by the 31st section of the 21 & 22 Vict. c. 90, they can sue, and they need not prove any contract (p). A surgeon, or a physician acting as such, might always sue for his fees (q). It is said that a physician or surgeon who acts gratuitously is only liable for gross negligence. By the Roman law the (1) As we have seen, ante, p. 2. (m) See ante, Ch. I., p. 11. (n) Chorley v. Bolcot, 4 T. R. 317. (0) Attorney-General v. Royal College of Physicians, 30 L. J. Ch. 757. (p) Gibbon v. Budd, 32 L. J. Ex. 182. Any college of physicians may, however, make bye-laws restraining the members from suing. (q) Battersby v. Lawrence, Car. & Mars. 277. undertaking of the performance of something was called "mandatum," and it would be immaterial that it was done gratuitously, for the Roman law said, if you undertake to do a thing you must take ordinary care about the doing of it (→). The English law, on the other hand, says that in consideration of me trusting you with the doing of the thing you impliedly promise me to do it, and so you create a duty to do it (s), and you must take ordinary care at the least. So that both the Roman and English laws say that ordinary care must be taken in the case of gratuitous mandate, or, in other words, that a physician acting gratuitously is liable for ordinary negligence, at the least. But it has been felt that a physician acting gratuitously is still a person who professes to use skill, and that if he does not exercise the skill which he ought to have he is guilty of a grave breach of his duty; and because it is a general rule that a person who is unpaid is not liable except for gross negligence, lawyers have called this want of skill, gross negligence; and so it has come to be said that a physician who acts gratuitously is only liable for gross negligence, whereas he is liable for showing want of skill. In truth the word "gross" does not here mean anything more than that it would be ordinary negligence in another person, but that in a person who should be skilful ordinary negligence may be called "gross." A surgeon is not an actual insurer; he is only bound to display sufficient skill and knowledge in his profession (t). He does not undertake to perform a cure, or even to use the highest possible skill, but a proper and competent degree of skill (u). (r) Wharton, s. 493; Camp. s. 8, ante, p. 9, note (q). (8) Coggs v. Bernard, 1 Sm. L. C.177. (t) Per Tindall, C.J., Hauke v. Hooper, 7 C. & P. 84. (u) Lanphier v. Phipos, 8 C. & P. 475; Rich v. Pierpont, 3 F. & F. 35. In a case at Nisi Prius, Perionowski v. Freeman, 4 F. & F. 982, Cockburn, C.J., is reported to have said that medical gentlemen who give their services gratuitously were not to be made liable for negligence for which they were not personally responsible. (Nurses gave too hot a bath to a patient in a hospital.) An unqualified person who acts as a doctor is of course equally bound to bring competent skill to the performance of the duty which he has undertaken (x). The cases in which mere negligence has been established against professional persons, such as solicitors, doctors, &c., do not appear to be very numerous, and two reasons may be given for this. In the first place, the taking of care is almost their raison d'être, while to many other persons the duty to take care is an impediment to their business; and in the second place, and as a consequence from the above-mentioned reason, when they are negligent, such negligence amounts in general to fraud or intentional neglect. In the case of doctors such matters have become the subject of investigation in the criminal courts where death has ensued (y). A medical man having once undertaken a case cannot desert it without reasonable cause, just as a solicitor cannot without good cause abandon the suit of his client (z). Where the ground for the allegation of negligence is a general want of that skill which a medical man undertakes to possess the defendant may give evidence of general skill; but where there is no doubt of his general skill but the ground for the allegation of negligence is that in the particular case he showed a want of skill, evidence of general skill will not (it is said) be received (a). SECTION XI. Solicitors. Solicitors, like physicians, evidently undertake to bring to the duties which they have to perform something more than (x) Ruddock v. Lowe, 4 F. & F. 519; Jones v. Fay, ib. 525. (y) See R. v. St. John Long, 4 C. & P. 298, and the rest of the cases collected in Russell on Crimes, 5th ed. vol. i. p. 664, et seq. (2) "Shearman on Negligence," s. 441; see Hoby v. Built, 3 B. & Ald. 349 (solicitor abandoning case). (a) "Shearman on Negligence," s. |