Carson v. Chicago, Milwaukee & St. Paul Railway Co., 31322

CourtUnited States State Supreme Court of Iowa
Writing for the CourtLADD, J.
Citation164 N.W. 747,181 Iowa 310
PartiesL. B. CARSON, Appellee, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant
Docket Number31322
Decision Date18 October 1917

164 N.W. 747

181 Iowa 310

L. B. CARSON, Appellee,
v.

CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant

No. 31322

Supreme Court of Iowa, Des Moines

October 18, 1917


Appeal from Jackson District Court.--WM. THEOPHILUS, Judge.

ACTION to recover for services rendered by plaintiff as a surgeon, in treating an employee of defendant's named Watson, and for services of Dr. Armstrong in assisting, and for hospital charges, the latter claims having been assigned to plaintiff. Trial was had to a jury, and on verdict for plaintiff, judgment was entered. The defendant appeals.

Reversed.

Hughes & Sutherland and F. W. Myatt, for appellant.

F. D. Kelsey and A. W. Sokol, for appellee.

LADD, J. GAYNOR, C. J., WEAVER, EVANS, SALINGER AND STEVENS, JJ., concur. PRESTON, J. (dissenting).

OPINION [164 N.W. 748]

[181 Iowa 311] LADD, J.

One Watson, a colored man. had been employed by the defendant on grading or cement work in the vicinity of Brown. The 20th of September, 1913, was rainy, and he and other colored men, having laid off for the day, had gathered at a house in the village. At about 5 o'clock in the afternoon, some of them informed Simpson, assistant foreman of defendant, that a man had been cut. Upon entering the house, Simpson found Watson bleeding and his intestines protruding. With the aid of others, he loaded him on a passing train to be taken to Preston. At the instance of the company's station agent there, Dr. Armstrong was at the station when the train came in, and directed the wounded man to be taken to his office. Either the foreman, Jones, or his assistant, Simpson, called Haskell, the assistant engineer in charge of the work being done by defendant, and Dr. Armstrong talked with him. Armstrong then replaced the intestines as best he could, and took the patient on the 7:15 o'clock train to the Maquoketa hospital, where, in the same evening, with his assistance, [181 Iowa 312] the plaintiff performed a successful operation. The patient remained at the hospital two weeks, and in this action the plaintiff seeks to recover compensation for the services rendered by him as surgeon, as well as for those rendered by Armstrong, and for the hospital charges. Included also are hospital charges for the care of one Zania. The rendition of the services in the treatment of Watson, as alleged, and that he and Zania were cared for at the hospital, and assignments of the claims to plaintiff, are not questioned. That neither Jones nor Simpson was authorized to engage the services of a physician is conceded.

Was the evidence sufficient to carry to the jury the issue as to whether Haskell was authorized to engage the services of Armstrong to treat Watson, empower Armstrong to engage plaintiff's service, and to incur expenses for the care of these patients? Haskell was shown to have been in charge of the improvements being made along defendant's line of railroad between Green Island and Oxford Junction. Wood, the district engineer, acting for defendant, had employed him, and Wood testified that the extent of Haskell's authority was to see that the grade work being performed by contractors was properly done, and that he was in direct charge of the concrete construction of bridges and culverts, with authority to employ and discharge the men engaged in such construction. The witness testified further that:

"As regards his authority as assistant engineer, with reference to the employment of physicians he had no authority aside from a list of physicians. He was given a list of the company's physicians along the line, and he was to call on them if any of the men were injured or sick while working on the company's work. He was expected to call the company's physician when an employe was injured while engaged in the work of the company, and that was the extent of Mr. Haskell's authority. * * * I would say the [181 Iowa 313] order was to go to the nearest physician in emergency cases. * * * In case Mr. Haskell couldn't find, at the place he desired, a regularly retained physician of the railway company, what would he do in such an emergency? A. I suppose just like anyone else would. I say he only had authority to go to the railroad company's physician. He hadn't authority to go to anyone else. By the Court: Q. I take it that there were a number of emergency cases where parties had been personally injured, under your supervision, and required immediate attention from some doctor. Now what is the usual custom of the road in cases where the injured party requires immediate attention, and a railroad doctor is not within reach? Do you allow them to die, or do you send them to some doctor that can be reached? A. All such cases are handled by the superintendent. The usual custom was to get them to a doctor as quick as possible. Q. And if the doctor of the company cannot be reached you will find some doctor; isn't that the case? A. Certainly; yes, sir."

The witness then explained that the authority to employ physicians was limited to employees who became sick or were injured while in the line of duty or service of the company. Neither plaintiff nor Armstrong had been employed as company's physician, but the evidence tended to show that employees injured while at work were taken to physicians other than the company's when the latter were absent, and that the defendant uniformly paid for the services by them rendered. The company's regularly employed surgeon was absent when Armstrong was engaged, and, without reviewing the evidence, we are of opinion that it was sufficient to have warranted the jury in finding that Haskell had authority to engage Armstrong's services, had Watson been injured while in the line of employment. Surely, ratification of his action in repeatedly taking employees [181 Iowa 314] to physicians other than those regularly employed by the company, by compensating them for services so rendered, was evidence that he had authority so to do.

In no instance other than that involved in this action, however, does it appear that he ever directed an employee, injured when not engaged in the company's work, to be taken to a physician, whether regularly employed by the company or not, or that the company ever paid for medical or surgical services or care at a hospital in such a case. Though physicians were shown to have aided in the care of those injured in a wreck at Riggs, and Haskell was in charge as representative of the company, there was no [164 N.W. 749] showing that he had had...

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1 practice notes
  • Wilson v. City of Ottumwa, 31661
    • United States
    • United States State Supreme Court of Iowa
    • October 18, 1917
    ...the defendant moved the court to direct a verdict in its favor. The motion should have been sustained. The evidence wholly failed [181 Iowa 310] to establish either negligence or action upon the part of defendant causing, or contributing in any way to, the nuisance in question. For the reas......
1 cases
  • Wilson v. City of Ottumwa, 31661
    • United States
    • United States State Supreme Court of Iowa
    • October 18, 1917
    ...the defendant moved the court to direct a verdict in its favor. The motion should have been sustained. The evidence wholly failed [181 Iowa 310] to establish either negligence or action upon the part of defendant causing, or contributing in any way to, the nuisance in question. For the reas......

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