Evans' Adm'r v. Cumberland Telephone & Telegraph Co.

• Decision Date: 26 October 1909
• Citation: 121 S.W. 959
• Parties: EVANS' ADM'R v. CUMBERLAND TELEPHONE & TELEGRAPH CO.
• Court: Kentucky Court of Appeals

121 S.W. 959

EVANS' ADM'R v. CUMBERLAND TELEPHONE & TELEGRAPH CO.

Court of Appeals of Kentucky.

October 26, 1909

Appeal from Circuit Court, Oldham County.

"To be officially reported."

Action by Ernest Evans' administrator against the Cumberland Telephone & Telegraph Company. From a judgment of dismissal rendered after sustaining a demurrer to the petition plaintiff appeals. Affirmed.

Lloyd W. Gates, Edwards, Ogden & Peak, and S.E. Dehaven, for appellant.

Fairleigh Strauss & Fairleigh, for appellee.

O'REAR J.

Ernest Evans sustained an accidental gunshot wound in the leg producing considerable hemorrhage. A messenger, who was dispatched to call a doctor, applied at a pay station of the appellee, and asked that he be furnished telephone connection with the doctor's residence, offering to pay the required toll. It is alleged that owing to the negligence of the operator there was a failure to make the connection with the doctor's telephone, in consequence of which he did not get the message, and Evans was thereby deprived of his services. It is further alleged that, if the connection had been made, the doctor would or could have got to the patient in time to have stanched the flow of blood and have saved his life; but, as the doctor did not get there, the patient for the lack of medical attention bled to death. This is a suit at law by the administrator of Ernest Evans against the telephone company to recover $25,000 damages for the alleged negligent destruction of the intestate's life. A demurrer was sustained to the petition. An amended petition was allowed. In the amendment it was averred that the doctor mentioned was the nearest doctor available, or who could have been secured by the decedent at that time. Evans was about four miles from the doctor's residence. A general demurrer was sustained to the petition as amended, and, plaintiff electing to stand by the cause of action as stated, his petition was dismissed. He appeals.

We think the alleged negligence too remote in law from the fact of the decedent's death to constitute it a proximate cause of the death. Nothing appears that, but for the alleged negligence, the death would not have resulted. The injury to the young man was inflicted before the negligent act sued upon, and, of course, has no causal connection with it. If the sending of the message itself, and it alone, could have prevented the death, a different state of case...