Chalmers v. Southern Pac. Co.
| Decision Date | 26 October 1925 |
| Docket Number | No. 4428.,4428. |
| Parties | CHALMERS v. SOUTHERN PAC. CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Theodore M. Stuart, of Fresno, Cal., for plaintiff in error.
L. L. Cory, of Fresno, Cal., for defendant in error.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
The complaint in this case sets forth substantially the following cause of action: That during the years 1920 and 1921, and for some years prior thereto, the plaintiff was in the employ of the defendant as a freight conductor, under a written contract of employment; that by the terms of this contract the defendant agreed, in case of injury to the plaintiff, to furnish him with medical and surgical treatment and hospital care and attention; that in consideration thereof the plaintiff agreed to and did pay to the defendant the sum of 75 cents per month during each and every month of his employment; that the defendant employed in its hospital department a large number of physicians and surgeons, and maintained a general hospital and division hospitals equipped with the latest X-ray apparatus, and employed experts to operate them; that proper treatment of a fractured vertebra in the spinal column requires the use of the X-ray, and that it is impossible to give the necessary or proper treatment for such an injury without such use; that, while in the employ of the defendant, the plaintiff was injured, in that his back was broken as the result of a collision between the train on which he was employed and another train; that such injury consisted of a compressed fracture of the third lumbar vertebra and also of the fifth lumbar vertebra; that commencing about March 1, 1920, the defendant undertook to care for and treat the plaintiff for his said injury; that, in violation of its contract, the defendant failed and refused to use X-ray appliances and apparatus to diagnose the broken bone; that because of such failure the defendant failed to discover that the plaintiff was suffering from such broken vertebræ, and in consequence thereof the medical and surgical treatment furnished proved valueless; that the defendant failed to furnish plaintiff in error any hospital care whatever; that the plaintiff requested defendant to send him to one of its hospitals and requested its surgeons to make an X-ray examination of his injury, but that, in violation of its contract, the defendant refused so to do; that the various surgeons of defendant, who had plaintiff in charge, disagreed as to his condition and failed and refused to hold a consultation, and failed and refused to furnish plaintiff in error with any hospital care or nursing, or with the necessary medical and surgical treatment. Among other defenses, the defendant pleaded the statute of limitations of the state of California, which provides...
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