Easler v. Columbia Ry., Gas & Electric Co.
| Decision Date | 10 March 1915 |
| Docket Number | 9008. |
| Citation | 84 S.E. 417,100 S.C. 96 |
| Parties | EASLER v. COLUMBIA RY., GAS & ELECTRIC CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Richland County; W. A Holman, Special Judge.
Action by Bennis Lorin Easler, an infant, by his guardian ad litem H. R. Easler, against the Columbia Railway, Gas & Electric Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Elliott & Herbert, of Columbia, for appellant.
J. B McLauchlin, of Columbia, for respondent.
Action for tort to the person; verdict for plaintiff for $1,000 appeal by defendant.
History: The electric car was running towards College place in the northern suburbs of Columbia. The plaintiff, a boy 14 years old, was a passenger. He rang for the car to stop, rose and went forward to the platform occupied by the motorman, and got upon the step. He was thrown to the ground and his shoulder bones injured. His mother, living hard by, came out to the scene, and, it is alleged, desired to take the boy into her house. The conductor, it is alleged, demurred, and carried the boy to the end of the line and back into the city to the company's surgeon for treatment, as he was bound to do by the company's rules. He was treated by that surgeon and discharged for well.
There are two exceptions, but the second was withdrawn, and the first only was argued, and on it turns the case.
The defendant's fifth request was this:
The court declined to charge the request, and that is the issue here.
The exception thereabout indicates the error of the refusal, to wit: "The error being that there was no act of omission or commission shown on the part of defendant's physician, and defendant had no power to direct the medical services of its physician, and was only chargeable with reasonable care in employing said physician, and the evidence therefore failed to show any negligence, and the request was proper, and should have been charged."
The exact issue the appellant has made in argument is this: That the defendant acquits itself when it has used ordinary care in the gratuitous employment of a reasonably competent surgeon; and, that done, the company is not liable for the surgeon's tort.
The respondent contends at the outset that the request embodied no such idea, and that no such idea was expressed in argument to the court below, and that the issue which it embodied may not now be made here.
It is true the complaint contained no allegation of negligent employment, nor did the answer contain any allegation of competency. And it is true that no witness for the defendant was asked to testify to the competency of the surgeon; but no witness for the plaintiff testified directly to his incompetency, and the burden of proving that was on the plaintiff. There was no reference in the court's charge to the matter of negligent employment.
A critical construction of the request doubtless sustains respondent's view; but the exception, made after the trial, it is true, suggests the idea; and we shall consider the issue now suggested in appellant's argument, but in the light of the testimony of the witnesses.
It is true that if a carrier shall (1) employ a surgeon to treat a patient, (2) and if the surgeon be reasonably competent, (3) and if the service to the patient be gratuitous, and (4)...
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