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1862.

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the other hand, the evidence did not show any particular user of the road by the tenants or occupiers of the defendant's farm; and, on the contrary, the user, so far as it had existed, seemed to have been general and chiefly by strangers.

M. Chambers, in summing up the case for the defendant, went upon the plea of a highway.

Bovill, in reply, on the part of the plaintiff, also directed his arguments against the plea of a highway. If so, or if it could be, why had the defendant paid for the repair ? Whether on the pleas of highway or of way by prescription, there must have been a user, as of right (a).

At the close of the case,

Erle, C. J. (to the jury), said the question for them was whether they were satisfied that there had been a dedication of the road to the public by the owner. If all the Queen's subjects had used the way at their free will and pleasure, and at all times, that was strong evidence of such a dedication as a highway (6). But the evidence of such a user was to be well weighed, with reference to gates, to repairs, to permission, and the like. It was a matter of common experience that there were many farm roads which, as means of communication, were of great convenience, and which many persons used a long time

(a) The question would seem to be substantially the same on both pleas. Vide the summing up.

(6) The Lord Chief Justice, it will be seen, seemed to regard the question as substantially the same, on both pleas, whether of public highway or of private way by prescription, which requires a user as of right. The question, however, for the jury, on the former, plainly includes the latter ; since, if there

VOL. III.

had been a dedicution by the owner to the public, the user must have been as of right. The converse, of course, would not hold, that, if the user was of right by prescription, there had been a dedication to the public, which, indeed, is not consistent with a defence founded on a private right. The evidence here clearly showed a user by the public, if at all.

F.F.

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before it becare worth the owner's while to resort to any measures to prevent it. On the other hand, the fact of payn.ent for the user would not be conclusive against the right, for it might be that a man was not in a position to enter into litigation to enforce the right. Still it was a strong piece of evidence against the right. The question was only as to the carriage way. The bridle way would be admitted, and if a gate was put up it might be opened by a horseman just as much as if there were a right of carriage way. The strongest evidence in favour of the defendants, and in support of the alleged right, was that of the bailiffs of former owners, for it would be within the province of the bailiffs to prevent trespasses, and they might have put a lock on the gate for carriages, and opened a bridle gate. Easy-minded men, however, would not be disposed to contest every user, and it was a matter for the experience of the jury whether the evidence tended to show a farm road or a bighway used by all the world, and whether the user as a highway had been submitted to by the owners. Beyond all doubt there might be a user of a highway for purposes of pleasure, but the question was whether the road had been used as a highway (a). It was very material that there had been no repair by the parish, although, to be useful, it had been necessary to lay out money on the road. This was not conclusive; for he had known instances in his experience of indictments against parishes for not repairing highways on Salisbury Plain, on which a pickase had never been used before, and he had known parishes forced to repair such highways. Now, Croydon was a very different neighbourhood from Salisbury Plain. The non-repair therefore was not conclusive, but it was certainly very important. On the whole evidence the jury must say whether the public had used the way at all times at their

(a) Vide ante, p. 33 (6).

1862

free will and pleasure. If so, they should find for the de
fendant; if not, for the plaintiff.
The jury returned a

Verdict for the plaintiff.

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mself

RICH ET uxor v. PIERPONT.

Surrey

Spring Assizes. DECLARATION, that the plaintiff retained the defend- To render a

medical man ant to attend his wife as accoucheur, but that the defendant liah did not use due and proper care and skill in that behalf, civilly, for

negligence, or but so carelessly conducted himself that his wife was in- want of due

care or skill, it jured, &c.

is not enough

that there Plea: not guilty.

has been a less Hawkins and Butler Rigby for the plaintiffs.

degree of skill than some

other medical Shee, Serjt., and Turner for the defendant.

men might

have shown, or By particulars delivered under judge's order the plain- a less degree of

of care than even tiffs stated their complaint under four heads, thus :-- First, that the defendant, on the 10th, 11th, 12th and 13th of might have

bestowed; nor December, 1861, while attending the female plaintiff, did is it enough

that he himnot use due skill and care in his capacity of accoucheur; self acknowsecondly, that while he was so attending her he carelessly be

” degree of want and improperly administered a certain drug or acid, and of care; there

must have improperly used an enema; thirdly, that on two of the been a want of days, the 12th and 13th of December, he was, while som

so ordinary care attending her, under the influence of intoxicating drink and skill, and

to such a de[this charge was abandoned); fourthly, that on the same gree as to have

led to a bad days, the 12th and 13th of December, he neglected to result. attend the female plaintiff personally, though called upon to do so.

The defendant was called, and, as already mentioned, admitted his impatience when first sent for. He acknowledged that it was usual to ask certain questions, especially as to the need for aperients; but added that the nurse often

some

ompetent and

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mentioned such matters to the medical attendant. He admitted that it would have been better to give more stimulants and support on the Wednesday and Thursday, but excused himself from so doing on the ground of the husband's aversion to the use of spirits, and the disagreement which would have arisen about it. He declared that the small quantity of tartaric acid could have done no harm; that spirits would have done good, and that he had early in the case desired and directed it. He professed that he knew not how he could have arrested the nausea by medicine, or what other medical means he could have used. He declared that he had desired he should be sent for when required, that he had attended nine different times, and had used all such means as to the best of his judgment he deemed desirable.

The assistant was called, and proved the prescription made up. He also proved making up saline and cooling draughts, and it was not disputed that these were proper things to administer.

Dr. Ramsbotham, Fellow of the College of Physicians and author of a work on obstretic medicine, and who had been in practice since 1823, stated that he had heard all the evidence on either side, and

Shee, Serjt., then asked the witness whether he was of opinion that there had been any want of due care or skill on the part of the defendant.

Hawkins, on the part of the plaintiffs, objected to the question, which, he said, it was for the jury to decide (a).

ERLE, C. J., after considering the question, suggested that it should be modified.

(a) Campbell v. Rickards, 2 N. & M. 542; et vide Lovatt v Tribe, unte, p. 9; as to the questions to be put to medical or other skilled

witnesses, on whose opinions the jury may determine. Et vide Hulch v. Lewis, Vol. II., p. 467.

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Shee, Serjt., then asked whether the witness bad heard anything which was improper in the defendant's treatment of the patient in a medical point of view.

The witness answered that he had not, and that there were no means which could have been resorted to by the defendant. Up to Thursday, he said, there was nothing to be done except to soothe the system. No medicine would allay the nausea caused by the patient's condition, as it arose from a cause beyond the control of medicine. He did not think that spirits were wanted before Thursday evening, nor did he think that the dose of tartaric acid had done the least harm. It was a very mild, harınless thing, and would make a pleasant glass of lemonade. The witness said he was decidedly of opinion that no surgical means ought to have been used. There were certain matters of which only the medical man in actual attendance could judge. To some extent the medical man, on certain matters, could rely on the nurse, who would usually tell him about them; and he said he thought he should tell the nurse to send for him when he was wanted, and not to do so before. No material mischief could have resulted from the delay of the aperient.

Dr. Steggall, a member of the Colleges of Surgeons and Physicians, who had been thirty-five years in practice, said he bad heard all the evidence in the case, and was of opinion that there was nothing, speaking medically, which had been omitted or wrongly done, and that it would not have been desirable that the defendant should have attended oftener. He also quite disapproved of the use of the ergot of rye, which had been ordered by the defendant's successor, Dr. Duncan.

The defendant, a member of the Royal College of Surgeons and of the Company of Apothecaries, had been twenty-five years in the profession, fifteen years as assistant and ten years in practice on his own account; had attended hundreds of midwifery cases and had never been

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