American Straw Board Co. v. Smith

Fowler, J., delivered the opinion of the Court. The plaintiff, a boy about nine years of age, while lawfully upon one of the public roads of Kent County was run over and permanently injured by a wagon driven by one Cole, an employee of the defendant, the American Straw Board Company. This suit was brought by the plaintiff by his father and next friend in the Circuit Court for Kent County to recover damages for the injury thus inflicted. During the trial two exceptions were taken by the defendant, and the judgment being against it, it has appealed.

The first exception relates to the exclusion of the testimony of Albert Story, which was offered for the purpose of proving the competency of the driver, Cole, the contention of the defendant being that evidence of the skill, experience and fitness of Cole for the place of driver tended to prove that he was free from negligence on this particular occasion. The fallacy ²¹ of this view is apparent. It may, perhaps, be admitted that it is probable that a skillful and competent driver will be more careful generally than one who is without these attributes ; but the most skillful and competent may be, and human experience teaches us, will be sometimes negligent. Hence the fact that one is skillful and competent may prove that he will generally be more careful than the unskillful and incompetent; but it has no tendency to prove due care on a particular occasion.

In the case of Slater v. Baker, &c., 2 Wilson, C. P. Rep. 359 (1767), which was a suit against two surgeons for injury caused by negligence, it is said: “Although the defendants in general way be as skillful * * * as any two gentlemen in England, yet the Court cannot help saying that in this particular case they have acted ignorantly and unskillfully, contrary to the known rule and usage of surgeons.” In addition to this, the question whether Cple is a skillful driver is not involved in this case. It was not in issue before the jury. The narr. alleges that he was driving the team and wagon at the time of the injury in a negligent, careless and unskillful manner, whereby one of the wheels of the wagon passed over plaintiff’s leg and permanently and seriously injured him. The negligence here alleged is consistent with the highest degree of skill and care on other occasions and hence the testimony offered was properly ruled out.

The case of Leighton v. Sargent, 27 N. H., 467, relied on by the defendant to show the admissibility of the testimony of Story has, we think, no application to the case at bar. That was an action of trespass on the case against a surgeon to recover damages for injuries inflicted upon the plaintiff. The Court (Bell, J.,) said in that case the declaration was entirely ambiguous as to whether the plaintiff would rely upon the allegation “ that the defendant was ignorant and knew nothing of the proper surgical treatment of such an accident as the plaintiff had suffered; or that being properly educated and competently learned in his profession, he had acted from negligence and carelessness, contrary to what must have been his better knowledge and judgment, if he had given proper at ²² tention to the case.” It is well settled by numerous adjudications in England, in this State and many other States as well that “ a person who offers his services to the community generally or to any individual for employment in any professional capacity as a person of skill, contracts with his employer that he possesses that reasonable degree of learning, skill and experience which is ordinarily possessed by the professors of the same art or science, and that he will use reasonable and ordinary care and diligence in the exertion of his skill * * to accomplish the purpose for which he is employed.” Dashiell v. Griffith, 84 Md. 381 ; Leighton v. Sargent, supra. But in the case now before us the action is not based upon any implied contract with the plaintiff of skill on the part of the driver of the defendant’s wagon.

There is no contractual relation here between the plaintiff and the defendant as there