One Jones recovered against a chemist and druggist of the name of Fay, £100 for damages, because he, Fay, gave him blue pills for the painters’ colic, such physic being improper [483]. A man, on the advice of a friend, went to a drug store for ten cents worth of “black-draught,” a comparatively harmless drug, of which he intended to take a small glassful as a dose for diarrhœa. There was evidence given by the clerk who sold the mixture, that at the shop he asked for “black-drops,” the defendant, the proprietor, told him that that was poison, that the dose was from ten to twelve drops, and advised him to take another mixture; he refused, and the clerk (by the defendant’s direction), gave him two drachms of “black-drops” in a bottle, with a label bearing those two words written upon it, but nothing to indicate the dose, or that it was poison. The man took the bottle home, drank almost all its contents, and died the next morning from the effects of so doing. In an action brought by the representative of the deceased to recover damages for negligent killing by the defendant, it was held that the Courts should have submitted to the jury the question as to whether the defendant was not guilty of negligence in failing to place upon the bottle a label, shewing that its contents were poisonous, and that it erred in non-suiting the plaintiff. Afterwards in giving the judgment of the Court of Appeal, Finch, J., said, “on such a state of facts (as sworn to by the clerk) a verdict |185| against the defendant would not be justified. Although no label marked ‘poison’ was put upon the phial, and granting that by such omission the defendant was guilty of misdemeanor and liable to the penalty of the criminal law (under the statute of the State), still that fact does not make him answerable to the customer injured, or to his representative in case of his death, for either a negligent or wrongful act, when towards that customer he was guilty of neither, since he fairly and fully warned him of all and more than could have been made known by the authorized label. * * * If the warning was in truth given, if the deceased was cautioned that the medicine sold was a strong poison, and but ten or twelve drops must be taken, he had all the knowledge and all the warning that the label could have given, and could not disregard it and then charge the consequences of his own negligent reckless act upon the seller of the poison. But if no such warning was given, its omission was negligence, for the results of which the vendor was liable both at common law and by force of the statute.” But the Court considered that the clerk being himself the one who had been negligent stood in a position to provoke suspicion, arouse doubt and justify watchful and rigid criticism, and that this joined with the conduct of the deceased, developed a question of fact rather than of law, and that the Court below was right in saying that the case should have been submitted to the jury [484].