Crawford v. Davis

• Decision Date: 20 July 1926
• Docket Number: 12037.
• Citation: 134 S.E. 247,136 S.C. 95
• Parties: CRAWFORD v. DAVIS, Director General of Railroads, as Agent, etc.
• Court: South Carolina Supreme Court

134 S.E. 247

136 S.C. 95

CRAWFORD v. DAVIS, Director General of Railroads, as Agent, etc.

No. 12037.

Supreme Court of South Carolina

July 20, 1926

Appeal from Common Pleas Circuit Court of York County; R. W Memminger, Judge.

Action by Tom Crawford against James C. Davis Director General of Railroads, as agent, etc. Judgment for plaintiff, and defendant appeals. Affirmed.

The following is the complaint:

"The plaintiff, above named, complains and alleges:

"(1) That by an act of Congress of the United States of America, approved on March 21, 1918, the management and control of all railroads, including the Southern Railway Company, a corporation organized and existing under the laws of the state of Virginia, was placed in the hands of a Director General of Railroads, and the defendant, James C Davis, is now the duly appointed and acting Director General as agent, under section 206 of the Transportation Act of 1920, and against whom all suits and actions at law arising against Walker D. Hines, formerly Director General of Railroads, during his operation and control, are authorized and directed to be instituted.

"(2) That at the times hereinafter referred to Walker D. Hines, as Director General of Railroads, was operating, controlling, and managing the Southern Railway Company, which said railway was then, and now is, the owner of tracks, roadbed, and other property in the county of York and state of South Carolina.

"(3) That while the plaintiff was engaged in working as a section hand on the track and roadbed owned by the Southern Railway Company, near Smith's turnout, in the county of York, and state aforesaid, on the 24th day of September, 1919, the plaintiff had his left leg injured by a cross-tie falling across it, bruising it, and breaking the skin on his said leg, and the agent, officers, and servants of the defendant, or his predecessor, Walker D. Hines, who was then Director General of Railroads, directed the plaintiff to go to Dr. Thomas A. Crawford, who was the duly appointed and acting surgeon of the Director General of Railroads at that time, for surgical treatment and attention, and, acting upon the request, advice, and direction of the defendant, or his predecessor, Walker D. Hines, Director General of Railroads, this plaintiff did go to the said Dr. Thomas A. Crawford for treatment, and the said Dr. Thomas A. Crawford so negligently, carelessly, and unskillfully treated and attended to plaintiff's said wounded leg, and so negligently and carelessly neglected to give it the proper attention and treatment, that it became infected, festered, and permanently injured, and plaintiff was caused to suffer intense pain and rendered unable to perform any work or to provide a living for himself and his family, all to his damage in the sum of $10,000.

"(4) That at the time of plaintiff's injury, as above set out, he was 54 years of age, had a wife and children, and was earning about $5 per day as a section hand, and was in sound health.

"(5) That plaintiff's said injury was caused by the negligence, carelessness, willfulness, recklessness, and wantonness on the part of the defendant, or his predecessor, Walker D. Hines, as Director General of Railroads, his agents, officers, and servants, in the following particulars:

"(a) In recommending, requesting, and directing the plaintiff to go to Dr. Thomas A. Crawford for surgical treatment, when he knew that the said Dr. Thomas A. Crawford was not a surgeon, but simply a doctor of medicine, and that on the 24th day of September, 1919, the date of plaintiff's injury, and previous and subsequent thereto, the said Dr. Thomas A. Crawford, who was a gentleman of high standing and had once been a capable physician, was incompetent to give to the plaintiff the proper care and attention and surgical treatment, by reason of the fact that he was suffering from a protracted illness, which affected his mental capacity, and rendered him wholly unfit and incompetent as a physician and surgeon to treat the plaintiff, which fact was well known to the defendant and to his predecessor, Walker D. Hines, who was then Director General of Railroads, his agents and servants, who, notwithstanding full knowledge of his incompetency at the time of and prior to the date of plaintiff's injury, retained him as a surgeon and put this plaintiff under his care and treatment.

"(b) In negligently, carelessly, and recklessly failing and neglecting to send the plaintiff to a hospital at Chester or Rock Hill, S. C., where he could have the care and attention of a competent surgeon, and in negligently, recklessly, and carelessly placing the plaintiff under the care and treatment of a physician and surgeon whom defendant knew at the time, and had long known, was incompetent to do any serious surgical or medical work, on account of a serious and protracted illness.

"(6) That after plaintiff's injury the defendant, or his predecessor in office, Walker D. Hines, Director General of Railroads, his officers, agents, and servants, admitted liability for plaintiff's said injuries, but, notwithstanding admission of liability, has failed and neglected to settle with him on account of his said injuries, or to pay him anything whatsoever for same.

"Wherefore plaintiff demands judgment against the defendant for the sum of $10,000 and for the costs of this action."

The judge's charge here follows:

"Now, Mr. Foreman, and gentlemen of the jury, you will have observed from the readings of the papers which you heard here in this case, and the arguments of the lawyers, that this question here has narrowed down for your determination, not to inquire whether this plaintiff, this old negro, is entitled to any damages for negligence with respect to getting hurt for handling cross-ties. That question is not in the case at all; his lawyers and himself are not seeking for you to find a verdict against the Director General of Railroads for that. They confine their claim to negligent employment, and negligent conduct on the part of the physician employed by the railroad, the Director General, as they claim, in attending to his wound, and in bringing about more serious and disastrous consequence to him as a result of that wound, from lack of proper attention to him, causing him greater pain and suffering than he would have sustained if it had been properly attended to by a competent physician; and greatly-permanently disabled him, and great loss of time, earnings, etc., they claim.

"Now, gentlemen, ordinarily speaking, it is not the duty of the employer to furnish medical attention to one who is injured in his employ, unless it is some such very serious injury as renders the party incapable of looking out for himself; but the employer can assume that obligation; he can undertake it; or if he has not undertaken it beforehand he can assume it and become responsible for it, for medical attention being furnished to one who has been injured in his employ. And if that medical attention is carelessly and negligently done, and his injuries result proximately from that negligence in carrying out the proper medical attention, why, of course, the employer is responsible for the conduct of the medical attention.

"Now, it is claimed in this complaint that the Director General did assume to have a doctor for this man, and that he knew, or should have known, that the doctor in question was incompetent by reason of physical and mental deficiencies, etc., at the time-was incompetent to attend to this injury. That is what this plaintiff claims the Director General undertook, to furnish a doctor-could have ascertained that the doctor was not of sufficient capacity at the time to give the thing the proper sort of attention, and that, therefore, he is liable for the damages resulting from such negligent and careless medical attention. And it appears to the Court that those are the questions that you gentlemen have to decide.

"Now, it is argued here that there must be absolute proof that the Director General knew that the physician was not in a condition to treat this man's trouble; and while, in the common term, under which expressed as well as implied-even if there was no direct information given to the Director General, yet if you gentlemen decide from the testimony, by the greater weight of it, that he could have known, in the exercise of due care and diligence, should have known that this physician was not in a condition to treat the man for his injury, then he is bound by that as if he would have-if he had direct and absolute knowledge upon it. And that is perfectly plainly laid down here in the case which you have heard the counsel referring to, showing which, in a particular case, the Supreme Court laid down the ruling, 'action by employer in securing-from which constructive knowledge of physician's incompetency could be inferred.'

"Now, in this complaint drawn in this case, which you have before you, it is alleged that the Director General knew, or should have known, that the physician was incompetent, and that is the case we have here. It is not alleged in-in the case before you it is so alleged in the papers. Of course, the mere allegation of that is not enough; it must not only be alleged, but it must be proved by the greater weight of the testimony, as the plaintiff must make out his case here before you by the greater weight of the testimony upon a very material point-that point is, that the employer had knowledge, or some fact from which constructive knowledge of the physician's competency could have been inferred. If you decide that in view of the testimony, the question is, Was the physician competent, or was he negligent in taking care of this man's injury? And if as a result of that negligence, failure to fairly perform an ordinary

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