Arkansas Southern Railroad Company v. Loughridge

Decision Date14 May 1898
Citation45 S.W. 907,65 Ark. 300
PartiesARKANSAS SOUTHERN RAILROAD COMPANY v. LOUGHRIDGE
CourtArkansas Supreme Court

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

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 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.

Appellee found the said Bascom Williams, with one leg crushed and otherwise wounded and bruised, and bleeding profusely. He soon got the hemorrhage under control, and sent for Dr. Kelly, the company's regularly employed physician. It became necessary for appellee to go at once to his office in El Dorado to procure the necessary instruments and appliances and professional assistance, and return to amputate the broken limb. Cargile, who seems to have been nothing more than a stockholder in the railroad company, perhaps a director at most, being informed of appellee's desire and intention to proceed to El Dorado for the purposes stated, immediately sent him forward on the engine, and at El Dorado the appellee engaged the services of Dr. W. J. Pinson, another regular practicing physician of that place, and they returned to the scene of the accident, and immediately amputated the broken limb; but, finding the bruises extending higher than at first appeared, for want of sound skin to make the necessary flap, a second amputation was made. The patient died the following day.

Some doubt seems to have been entertained as to whether the company was liable for the services thus rendered, and considerable negotiation seems to have been had on the subject. C. C. Henderson, the general manager of the company, at one time promising to assist in paying the bill, to the extent of fifty dollars, not as a liability however, but as a voluntary contribution, as we infer.

The main question, as may be readily seen, is whether or not the railroad company is responsible in any case for the contracts of an employee not made in the line of his employment, and he having no express authority to make them; and, if so, under what state of circumstances this liability attaches to it. This is a mooted question, but the weight of authority seems to sustain the doctrine that in case of an emergency the employment (of a physician for instance) by the highest railroad official present is the act of the company, and it will be liable for the value of the services rendered to one in the employ of the company injured by the running of its trains.

In St. Louis A. & T. R. Co. v. Hoover, 53 Ark 377, 13 S.W. 1092, Hoover, a physician, at the instance of the conductor of defendant company's train, rendered medical services to a passenger injured by the running of the train, and sued the company for the value of his services. This court said in that case: "Neither a conductor, station agent, nor solicitor of a railway company is authorized, in ordinary cases, to contract for surgical attendance upon a passenger or employee injured in operating the train of the railway company, so as to bind the company [citing a list of authorities.] It has been held that where such...

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