Quinn v. Kansas City, M. & B.R. Co.

• Decision Date: 02 May 1895
• Parties: QUINN v. KANSAS CITY, M. & B. R. CO.
• Court: Tennessee Supreme Court

30 S.W. 1036

94 Tenn. 713

QUINN v. KANSAS CITY, M. & B. R. CO.

Supreme Court of Tennessee.

May 2, 1895

Appeal from circuit court, Shelby county; L. H. Estes, Judge.

Action by Thomas H. Quinn, administrator, against the Kansas City Memphis & Birmingham Railroad Company for damages for personal injuries. From a judgment for defendant, plaintiff appeals. Affirmed.

James M. Greer and C. D. M. Greer, for appellant.

Adams & Trimble, for appellee.

BREAD J.

One Quinn, the intestate of plaintiff in error, was an employé of defendant, who was seriously crushed by the driving wheel of one of its engines, while engaged in the discharge of his duty as switchman in the yards of the railroad at Holly Springs, Miss. Immediately after the injury he was taken in charge by a surgeon employed by the defendant to render surgical attention to such of its employés as were injured at that place, while in its service. He at once placed himself in communication by wire with the chief surgeon of the railroad, whose duty, under his employment, was to render personal attention in such cases, and to exercise supervisory care over its local surgeon, including the one in personal charge of Quinn; this chief surgeon living, and at the time being, in Memphis. The result of this communication was that the latter, having decided it was best for the wounded man that he should be brought to his father's house in Memphis, where he could more safely and intelligently receive surgical care, announced his decision to the railroad authorities, and requested them to prepare at once to bring him in. In obedience to this direction, a special train was made up without unnecessary delay, and Quinn, accompanied by the Holly Springs surgeon, was taken on board, and, after a rapid run, was delivered over, at the depot of the railroad in Memphis, into the keeping of the chief surgeon. Within a few hours thereafter intestate of plaintiff died. This action was brought to recover damages against the railroad for negligence resulting in his death. Among other grounds of negligence laid in the declaration was that defendant failed to provide the intestate with proper medical service, and that this failure greatly aggravated his condition, and largely contributed to his death.

On the trial of the case, the court below excluded certain evidence offered by plaintiff in error, which tended to show that these surgeons were unskilled in their treatment of the patient, and that this unskillfulness was one of the active causes contributing to his death. When he came to instruct the jury, the trial judge, among other things, said to them "If deceased was put in charge of physicians of good reputation, it was their business to stop the flow of blood if any, and defendant is not liable for any failure to stop this flow while the patient was in charge of, or after he was put in the charge of, the physicians. If deceased was put in the hands of competent surgeons of good reputation and standing in their profession, defendant is not liable for any treatment given the patient by them, or by others under their advice." The action of the court below in excluding this testimony and in giving this instruction is now assigned as error. Before considering this assignment, it is proper to say the record tends to show that these surgeons were men of fine reputation for having skill and experience in their profession, and that for the service rendered to the deceased, as in all other similar cases, they were paid by the corporation, without cost or charge to him or to his estate. The question presented by this assignment is new in this state. It is almost as new to the courts outside the state. The diligence of counsel in this case, and the investigation of this court, have resulted in finding but four cases involving it, and three of so recent date that neither they, nor the rule announced by them, have been carried into the latest text-books on railway law.

Plaintiff in error insists that the defendant in error is liable for the mistakes or malpractice of the surgeons in question; that their employment by the railroad creates the relation of master and servant; and that the ordinary rule which makes the master liable for the negligent acts of his servant within the scope of his employment is to be applied in this case. If he be correct in his contention that the relation between the railroad and the surgeons was that of master and servant, then his conclusion would properly follow. But was that the relationship? We do not think so. The term "servant," as it is used in connection with the rule...