himself in such a situation as to enable him to undergo the operation; it was objected this verdict and recovery cannot be pleaded in bar to an action of trespass vi & armis to be brought for the same damage; but we are clear of opinion it may be pleaded in bar. That the plaintiff ought to receive a satisfaction for the injury, seems to be admitted; but then it is said the defendants ought to have been charged as trespassers vi & armis; the court will not look with eagle's eyes to see whether the evidence applies exactly or not to the case, when they can see the plaintiff has obtained a verdict for such damages as he deserves, they will establish such verdict if it be possible. For any thing that appears to the court this was the first experiment made with this new instrument, and if it was, it was a rash action, and he who acts rashly acts ignorantly; and although the defendants in general may be as skilful in their respective professions as any two gentlemen in England, yet the court cannot help saying that in this particular case they have acted ignorantly and unskilfully, contrary to the known rule and usage of surgeons. Judgment for the plaintiff per totam curiam. Seare against Prentice. From 8 East.
This was an action on the case brought by the plaintiff, a shoemaker, against the defendant, whom he employed as a surgeon, for negligently, ignorantly, and unskilfully reducing a dislocated elbow and fractured arm of the plaintiff, of which he had undertaken the cure. The cause was tried before Heath J. at the last assizes at Hertford; and a verdict having been given for the defendant under the direction of the learned Judge; that direction was now impeached, and a rule nisi for setting aside the verdict and granting a new trial was moved for by Gurney, upon the ground that there was evidence laid before the jury of the unskilful treatment
