Arkansas Southern Railroad Company v. Loughridge

• Court: Supreme Court of Arkansas
• Writing for the Court: BUNN, C. J.
• Citation: 45 S.W. 907,65 Ark. 300
• Parties: ARKANSAS SOUTHERN RAILROAD COMPANY v. LOUGHRIDGE
• Decision Date: 14 May 1898

45 S.W. 907

65 Ark. 300

ARKANSAS SOUTHERN RAILROAD COMPANY
v.
LOUGHRIDGE

Supreme Court of Arkansas

May 14, 1898

Appeal from Union Circuit Court, CHARLES W. SMITH, Judge.

Judgment affirmed.

Jesse B. Moore and Morris M. Cohn, for appellants,.

There is no evidence that appellee was employed by appellant or any one acting for it. The appellant was not bound to furnish medical attention for the person injured; nor could any conductor or general manager bind it by a contract for same, without authority from the board of directors. 48 Ark. 188; 8 Ark. 227; 20 Ark. 251; 23 Ark. 411; 31 Ark. 212; 34 Ark. 246; 39 Ark. 580; 40 Ark. 251; 41 Ark. 177; 42 Ark. 188; 51 Ark. 483; 53 Ark. 208, 377; 62 Ark. 33 40; 54 Mo. 177; Bish. Cont. § 1066; 72 N.W. 997. If any verdict was justified for medical attention in this case, it should have been a joint verdict, in favor of appellee and the physician who assisted him. 10 C. B. 739; 1 Exch. 644. One of the jurors was related to one of the parties interested in the verdict; hence the verdict can not stand. 32 Me. 310; 47 Me. 593; 28 Ga. 439; 60 Ga. 550.

W. D. Jameson and Bradshaw & Williams, for appellee.

The conductor of appellant's train asked appelle to attend to the injured boy. This raised an implied promise to pay for such services. The jury so found, and (their finding being supported by evidence, this court will not disturb it. 16 Ark. 237; 32 Ark. 112-159; 17 Ark. 331-335; 25 Ark. 89. The necessity of the occasion authorized the conductor to contract for necessary medical attention. 22 Am. & Eng. R. Cas. 371; 98 Ind. 358; 49 Am. Rep. 752; 29 Md. 420; 1 Am. & Eng. R. Cas. 343; 24 Kns. 228. The physician whom appellant procured to help him was not a necessary or proper party to an action against the railway company. Even if he had been, appellant waived the right to object on the ground by going to trial without objection and answering the complaint. 30 Ark. 399; 54 Ark. 525. Error in permitting testimony improper but not prejudicial, to go to the jury, is not reversible. 17 Ark. 404; 20 Ark. 216. It was not error for the court to refuse a new trial on the ground of newly discovered evidence, because there was no affidavit filed in regard to it. Sand. & H. Dig., § 5842. Also, because application did not show that the evidence was not cumulative, or would not tend to prove facts directly in issue on the trial. 2 Ark. 33; ib. 133; ib. 346; 11 Ark. 671; 26 Ark. 496. This court will not control the discretion of the trial court as to granting or refusing such applications for new trial, unless the record shows an abuse of such discretion. 54 Ark. 364; 41 Ark. 229.

OPINION

[65 Ark. 301] BUNN, C. J.

This is a suit, tried in the Union circuit court, to recover the value of services rendered by the appellee as physician and surgeon in attending upon a brakeman of appellant company, who had fallen from the cars near Carigle in [65 Ark. 302] Union county, and had one leg crushed, and was otherwise hurt and bruised.

Defendant's train, proceeding northward, had approached near Cargile, one of its stations, when Bascom Williams, a brakeman employed in running the train, was thrown from the cars, and was wounded as stated. The appellee, a regular practicing physician, residing in El Dorada, a few miles north of Cargile, happened to be a passenger on the train at the time. When the accident occurred, the train stopped, and the conductor, Walsh, hurried to the scene of the accident to ascertain what was the matter, having heard that a man was hurt, and, in passing through the passenger coach, requested appellee (as appellee states) to go with him, and look after the wounded man, not knowing, as we infer, at the time, who had been hurt, nor the nature of his hurt; and the appellee did so. The conductor denies having made the request of appellee to go and look after the wounded man, but says he went on his own accord. The other evidence is somewhat conflicting as to this, and it was a question for the jury, and they determined it in favor of plaintiff.

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