Illinois Cent. R. Co. v. Moodie

• Decision Date: 03 February 1928
• Docket Number: No. 5194.,5194.
• Citation: 23 F.2d 902
• Parties: ILLINOIS CENT. R. CO. v. MOODIE.
• Court: U.S. Court of Appeals — Fifth Circuit

23 F.2d 902 (1928)

ILLINOIS CENT. R. CO. v. MOODIE.^*

No. 5194.

Circuit Court of Appeals, Fifth Circuit.

February 3, 1928.

W. H. Sadler, Jr., of Birmingham, Ala. (Nesbit & Sadler, of Birmingham, Ala., and R. V. Fletcher, of Chicago, Ill., on the brief), for plaintiff in error.

Hugo L. Black, of Birmingham, Ala. (Black & Fort, of Birmingham, Ala., on the brief), for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

Defendant in error, hereafter called plaintiff, brought suit in separate counts to recover damages for personal injuries alleged to have been caused by the negligence and breach of contract of plaintiff in error, hereafter called defendant. At the close of the evidence, defendant asked for the general affirmative charge on each count, which was denied. The case went to the jury, and resulted in a verdict for plaintiff, on which judgment was entered. Error is assigned to the refusal of the court to direct a verdict for defendant.

The material facts shown by the record, which are undisputed, are these: Defendant, an interstate railroad, has established a hospital department in charge of a chief surgeon, who employs doctors, nurses, and other necessary help. Hospitals for the treatment of its employees are maintained at various places, including New Orleans. The employees contribute 75 cents a month each, which is deducted from their pay, to a hospital fund, which is segregated from the other funds of the company and devoted exclusively to the hospital department and to medical treatment of employees for illness not incurred in their line of duty. Defendant is obligated to contribute to this fund in case of a deficiency, but so far there is a surplus in the fund. If an employee, or a passenger, or a trespasser, is injured on the road, he receives medical attention, and for this the company contributes the cost to the hospital fund. Hospitals maintained by defendant are not operated for profit, though sometimes persons not coming within the classes above enumerated are received in them for treatment for which they pay, and an employee is also required to pay extra if he is furnished with a private room. Plaintiff, an employee, became an inmate of defendant's hospital at New Orleans and was operated upon on October 1, 1925. The next day, while semiconscious, he fell out of his bed, or fell after arising, and suffered a fractured hip. There was a nurse in attendance upon him, but she had absented herself from the room temporarily, leaving his wife with him. His wife also had left the room when the accident occurred. Plaintiff was under the care of the senior physician in charge of the hospital, but he did not discover the fracture at all. Some 30 days after the accident, the senior physician resigned, and his successor took charge of plaintiff and then discovered that his hip had been fractured. It was then too late to set it without a serious operation, and nothing was done except to alleviate his pain. Plaintiff was subsequently discharged from the hospital, but was permanently injured. The hospital was equipped with modern appliances of all kinds, except that it did not have a portable X-ray machine, which would have been necessary to properly diagnose plaintiff's injury, as he...