It must be remembered that the implied liability of a physician or surgeon, retained to treat a case professionally, extends no further, in the absence of a special agreement, than that he will indemnify his patient against any injurious consequences resulting from his want of the proper degree of skill, care or diligence, in the execution of his |76| employment; and in an action against the surgeon for malpractice, the plaintiff, if he shows no injury resulting from negligence or want of skill in the defendant, will not be entitled to recover even nominal damages [184]. The question whether the physician possessed adequate skill, and exercised adequate care, is, in a case of malpractice, for the jury to decide. Theoretically, and we may add, literally, the jury have the unquestioned right to decide every controverted fact, even if its decision may involve the most abstrusively difficult and uncertain questions in the regions of scientific enquiry. But it is for the Judge to determine whether there is or not such evidence as ought reasonably to satisfy the jury that the fact sought to be proved is established. As Lord Cairns once put it, “The Judge has to say whether any facts have been established by evidence from which negligence _may be reasonably inferred_, the jury have to say whether from these facts, when submitted to them, _negligence ought to be inferred_.” It is for the Judge to say whether the case should or should not be submitted to the jury; and the rule is imperative that it should not be, unless the evidence be such that therefrom the negligence charged may be reasonably inferred [185]. Judges are generally desirous of impressing on juries the necessity of construing everything in the most favourable way for the defendant, when such actions are brought against a surgeon. “It is notorious there are many cases in which jurors are not the most dispassionate or most competent persons to try the rights of parties, and an action of this kind (_i. e._, against a surgeon for malpractice) comes within this class. In such actions the Judge should |77| firmly assume the responsibility of determining himself whether sufficient evidence has or has not been given to compel him to leave the case to the jury” [186].