Arkansas Midland Railroad Co. v. Pearson

• Decision Date: 20 March 1911
• Citation: 135 S.W. 917,98 Ark. 399
• Parties: ARKANSAS MIDLAND RAILROAD COMPANY v. PEARSON
• Court: Arkansas Supreme Court

135 S.W. 917

98 Ark. 399

ARKANSAS MIDLAND RAILROAD COMPANY v. PEARSON

Supreme Court of Arkansas

March 20, 1911

[Copyrighted Material Omitted]

Appeal from Phillips Circuit Court; Hance N. Hutton, Judge reversed.

STATEMENT BY THE COURT.

This suit was brought by appellee to recover damages for the benefit of the widow and next of kin and the estate, for the wrongful death of his intestate, caused, it was alleged, by the failure to furnish him proper medical and surgical attention.

It was alleged that the deceased, Jack Campbell, while in the discharge of his duties as conductor of a freight train on appellant's road, known as the accommodation, running from Helena to Clarendon and return, jumped or fell from the top of one of the box cars on September 22, 1908, at about 11:45 A. M., and sustained from said fall the following injuries: "a comminuted fracture of the right ankle and fracture and dislocation of the left ankle." That both said injuries were serious, and the demand for immediate skillful attention urgent. That the train was ordered to proceed on its regular trip, and the said Campbell was left at the town of Holly Grove, where only the most perfunctory attention was given him until the return trip of the train about 2 o'clock P. M. That he was then placed on a crude cot in one of these box cars, and, without any attendant provided by defendant, was brought to the city of Helena arriving at 8:30 P. M. That while said Campbell was in said box car, the train did its regular and ordinary work switching a large number of cars at the towns of Womble, Poplar Grove and Barton, by reason of which he was roughly and cruelly thrown from side to side upon his cot and caused to suffer untold agony and his wounds to receive fresh injuries. That the company physician failed to do anything for his relief, and upon his arrival at Helena advised that he be taken to the hospital at St. Louis, which was done by defendant's direction, on the morning of September 23. On arriving at St. Louis at 8:30 P. M., by reason of the failure of the defendant's hospital department to provide an ambulance as it had agreed to do, he was compelled to remain in the station for several hours, and did not reach the hospital until 11 o'clock at night. That he then received no attention, except a perfunctory examination by an interne, until 11 o'clock the next day, at which time decomposition had set in, and that he died the following morning as a result of said injuries at 7:30 o'clock.

Plaintiff charges that the proximate, the immediate and the only cause of the death of said Campbell was the gross negligence, indifference and inhumanity of the defendant company. Plaintiff charges the truth to be that if the defendant had used even ordinary care and caution in the treatment of said Campbell after the nature and extent of said injuries were fully known to defendant, his life could and would have been saved and his usefulness unimpaired. That by reason of said failure by defendant to provide surgical and medical attention at the proper time, and by reason of the delay in getting said Campbell where he could be and would have been properly treated, which said delay was caused by the gross negligence and carelessness and indifference of the defendant, said Campbell was caused to suffer and did suffer the most excruciating misery and physical pain, by reason of which he was finally caused to lose his life." That he left surviving his widow, Maggie Campbell, and five children of the ages of 12, 10, 7, 5 and 3 years, respectively. At the time of receiving said injuries he was 39 years old, in perfect health and earning $ 100 a month. That deceased contributed to the maintenance and support of his wife and children as aforesaid the entire amount of his salary; that he was sober, industrious, of good moral character, in direct line of promotion, kind to his children and solicitous of their well being. Prayed judgment for $ 15,000 for the widow and children and for the mental and physical pain and suffering of deceased, for the benefit of his estate, damages in the sum of $ 10,000.

Defendant filed a motion to strike out certain parts of the complaint, which was overruled. It then answered, denying that said Campbell was engaged in the performance of his duties as conductor of the train mentioned when he received the injuries complained of. That there had been taken out and retained by the defendant any sum of money from his salary for the support and maintenance of the hospital department of the defendant, and that in return therefor it was understood by and between the said defendant and Campbell that he should receive proper medical and surgical attention, to be supplied and furnished by the said defendant whenever the emergency or necessity therefor should arise; that it was defendant's duty to give such medical and surgical attention to said Campbell, and denied that there was any neglect of such duty. Denied all the material allegations specifically. Alleged that deceased was allowed to remain at Holly Grove after the accident and injury and put upon the return train and carried to Helena at his own solicitation and suggestion, and made as comfortable as possible on his return trip, and handled with all the care and attention as was suggested and required by him. Denied that any physician or surgeon on its behalf failed to do anything for Campbell's relief; alleged that everything possible was done for his comfort and relief, and that it was at his request that he was transferred to the hospital at St. Louis. Denied that there was any failure or refusal of hospital department to provide an ambulance to take him from the station to the hospital, or that it had agreed or promised to do so. Denied that after reaching the hospital he received no attention, and alleged that he was properly examined and treated, and everything known to medical science and surgery was done and performed for the said Campbell. Denied that he died as a result of any neglect of defendant as to his alleged injuries. Denied that it failed to use ordinary care and caution in the treatment of Campbell, or that his life could and would have been saved and his usefulness unimpaired by the most skillful treatment known to medical or surgical science. Denied that the nature and extent of his injuries were fully known to the defendant at the time; that there was any failure to provide surgical and medical attention at the proper time, or that by reason of any delay to get Campbell to a place where he could and would have been treated he was caused to suffer, or that by reason of any such failure said Campbell was caused to lose his life; that plaintiff was entitled to recover any damage for mental or physical suffering.

Answering the second paragraph of the complaint, denied that deceased was conscious of mental or physical pain and suffering, or that it was caused by or was the direct or proximate result of any cruel or inhuman treatment alleged to have been received by him while on the return trip to Helena, or that any part thereof was caused by any negligence or careless failure of the defendant to provide surgical and medical attention at the proper time, or that there was any failure on the part of defendant to provide proper medical and surgical attention to said Campbell, and alleged that he did receive proper medical and surgical attention and treatment, and whatever was done in the way of caring for him after the injury and in the way of medical and surgical treatment or in transportation to secure the same, or in the waiting for such medical or surgical treatment, was pursuant to the request of the said Campbell himself. Denied that his estate was damaged in any sum whatever by any wrongful or negligent conduct on the part of the defendant. Alleged further that if deceased experienced or endured mental or physical pain or suffering, same was caused and contributed to by his neglect and his own conduct, and pursuant to his own request; that any injuries or damages alleged were within the assumed risks and hazards of said deceased as to his employment, for which the defendant was not liable."

An amendment to the complaint was filed, alleging the sale of the Arkansas Midland Railroad to the St. Louis, Iron Mountain & Southern Railway Company after the filing of the complaint and the consolidation and merger of the said roads. Prayer that said St. Louis, Iron Mountain & Southern Railway Company be made a party defendant, and for judgment against it as against the Midland.

The St. Louis, Iron Mountain & Southern Railway Company appeared and adopted as its answer to the original and amended complaint the answer filed by the Arkansas Midland Railroad Company; "and each and both of said defendants denied any liability whatever, and prayed judgment on behalf of defendants herein, and for all other and proper relief."

The testimony tended to show that Jack Campbell was conductor on the accommodation train carrying freight and passengers running from Helena to Clarendon and return, at a salary of $ 100 a month; that he fell or jumped from the top of a box car to the ground in the yards at Holly Grove about 11 o'clock on the morning of the 22d of September, 1908. That the brakeman and engineer went to his assistance and set him up in the box car, carried him down to the station and sent for the doctor. Dr. Sylar was the company physician at Holly Grove, and reached the patient within 20 or 30 minutes after he was telephoned for. The witnesses first reaching him saw that his ankle was swollen. The skin was not broken, but badly bruised, turning black. He had removed his shoes before they reached him. The car was stopped near the station by Campbell's direction, and the physician examined...