Rival v. Atchison, T. & S.F. Ry. Co.

• Decision Date: 22 January 1957
• Docket Number: No. 6050,6050
• Citation: 64 A.L.R.2d 1098,1957 NMSC 7,62 N.M. 159,306 P.2d 648
• Parties: , 64 A.L.R.2d 1098 Gregorita RIVAL, Administratrix of the Estate of Filemon Rival, Deceased, Plaintiff-Appellee, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 648

306 P.2d 648

62 N.M. 159, 64 A.L.R.2d 1098

Gregorita RIVAL, Administratrix of the Estate of Filemon Rival, Deceased, Plaintiff-Appellee, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Defendant-Appellant.

No. 6050.

Supreme Court of New Mexico.

Jan. 22, 1957.

Bryan G. Johnson, Richard G. Cooper, Albuquerque, for appellant.

Lorenzo A. Chavez, Arturo G. Ortega, Albuquerque, for appellee.

KIKER, Justice.

Plaintiff's intestate was a man 26 years of age, a common laborer. A considerable portion of his working life had been spent in doing labor for farmers and ranchers. At times he had worked for the Santa Fe Railroad, as he was doing on the occasion when and where, the complaint charges, his death should be attributable to negligence on the part of that company.

He had been in the armed forces of the United States for a period of about two years and, recently, had been discharged therefrom. After his discharge, he remained at the home of his parents for about six months, working for local ranchers and hauling wood for his parents' home. Only a few days before the date of his death he went to work for the defendant railroad as an extra gang or track laborer, commonly called section hand.

It was decedent's common practice to turn over his earnings to his mother for family use. His mother would return to him, upon his request, small sums of money, such as a dollar, to attend a dance, or a like amount for a haircut or for some entertainment, and such money as he needed for clothes. While decedent was in the government service his mother was classified as his dependent and received the monthly allotment. From his earnings, a car had been purchased and the title was in the names of both his mother and himself. He had purchased a part of the furniture in his parents' home, and a small business had been established with money earned by him. This was operated by his parents, but was closed after his death.

On June 17, 1954, a hot day, decedent was working, as above stated, near Dexter, New Mexico. During the lunch hour he and a fellow worker had their lunch together. After lunch, at 1:00, the section gang returned to work. At some time after decedent had returned to work, the testimony being uncertain as to the length of time that elapsed after so returning, he became ill. There is testimony which would indicate that he felt sick about 1:30; and there is other testimony that the time of his so complaining was between 1:30 and 2:00; and there is further testimony that his first complaint of being sick was made at some time later than 2:00. He was one of a group of laborers who used bars with which to pull or push the track, according to the directions of a man who cried out to them whether to pull or push. He first paused in his work, made another effort, and finally dropped his bar or threw it down, and told a fellow worker that he was sick and could not work. This man told him to go into the shade of a toilet building, about 15 feet distant from the place where they were working. He went there and sat in the shade of that building about 15 minutes, after which he moved a distance of about 150 feet across a roadway into the shade of some trees. There he remained for an uncertain period of time.

There is testimony that, buring the short time decedent spent in the shade of the toilet building, he was moving his arms. There is further testimony that when he got up from that place to go into the shade of the trees across the road, he was mumbling, but what he said was not understood by the man who heard him. While decedent was under the shade of the trees he continued moving his arms about and was moving his legs.

After decedent had left his work, the man acting as foreman of the extra gang came up and inquired as to what was the matter with the boy. He was told that decedent was sick and that he had better go tell decedent's father, who was working in the regular section gang at some distance away. This extra foreman started in that direction, but stopped, and sent another man to give that notice. How much time had elapsed since decedent first left his work, and the attempt to notify his father, is not shown by the record. The man who gave the notice came back with the father in the direction of the trees where decedent had been lying in the shade.

The general foreman of both the regular gang and the extra gangs came upon the scene and was told about decedent's having become ill. Before the father got to where decedent had been in the shade, decedent was picked up by the general foreman and two other men and carried away to a doctor's office at Dexter, about 700 feet from the shade of the trees. Before the general foreman and the other men had picked up decedent he had begun to crawl back across the road.

After reaching the office of Dr. E. J. Hubbard, decedent became violent and struck the doctor, so that the doctor was prevented from doing more. Officers were called, and after a time decedent was removed to the hospital at Roswell, a distance of nearly 20 miles. The testimony shows that decedent's condition, at the time he reached the hospital, was such that nothing could be done to save his life. Nevertheless, the attending physician and staff did everything they could to afford relief to decedent, and these measures might even have saved his life if he had been so ministered to immediately after leaving the track. The diagnosis was sunstroke, and decedent died at about 6:30 p.m.

So far as the record shows, no man connected with the section gangs at the time decedent left his work had ever seen a case of sunstroke. The men who were laborers on that section gang, including the foreman of the extra gang in which decedent worked, were uneducated men. They were all men who had had very little educational opportunity. Their testimony shows this lack of education on the part of all.

The action was brought by the decedent's mother under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq.

At the close of plaintiff's case, defendant moved for a directed verdict. The defendant stated as grounds for the motion: (1) that no failure of treatment of an ill employee is actionable under the Federal Employers' Liability Act unless the negligence or omission is occasioned by acts in furtherance of interstate commerce; (2) that the evidence does not contain facts showing liability on the part of defendant for the death of plaintiff's decedent; (3) that there is no liability under the Federal Employers' Liability Act for pain and suffering where the injury sustained in the first instance was not the proximate result of defendant's negligence; and (4) that the evidence does not show any definite amount of contribution by decedent to his father and mother and the family of their household.

The motion was overruled. At the close of the whole case, the motion was renewed and it was again overruled. The jury returned a verdict in favor of plaintiff. Thereafter defendant filed a motion for judgment notwithstanding the verdict, or, in the alternative, to set aside the judgment and grant a new trial. That motion was overruled in its entirety.

Judgment was entered for plaintiff upon the verdict and this appeal has resulted.

The proposition of law which governs the determination of this case is well stated in Gypsy Oil Co. v. McNair, 179 Okl. 182, 64 P.2d 885, 892, as follows:

'The question of whether or not an admitted or clearly established state of facts does, or does not, show that a sick or injured employee is in such a serious condition as to cast upon the employer the duty of furnishing him prompt medical treatment, is also one of law for the court's determination. To bring a case within the rule casting such duty upon the master, it must be shown, or there must be evidence fairly tending to show, that the stricken employee will suffer loss of life or serious bodily harm unless such aid is provided and that the employer or his agent actually had, or by the exercise of due care would have bad, notice thereof.'

See also Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368.

The parties are in agreement this is the law. The proposition is stated at 56 C.J.S., Master and Servant, Sec. 162, p. 815, as follows:

'Where in the course of his employment a servant suffers serious injury or is suddenly stricken down in a manner indicating immediate and emergent need of aid to save him from death or serious harm, the master, if present, is bound to take such reasonable measure or make such reasonable effort as may be practicable to relieve him even though the master is not chargeable with fault in bringing about the emergency or the injury occurred through the employee's own negligence.'

Liability upon an employer for failing to provide medical attention, for the illness of an employee stricken while working, can be established by showing that an emergency exists; that the emergent condition is such that the employee is in immediate danger of loss of life or of great bodily harm; and that the employer has knowledge, actual or constructive, of the emergency and all its elements, above stated.

That there was an emergency from the time decedent left the track cannot be doubted. That the emergency was immediate and that there was danger of loss of life or of great bodily harm to the stricken employee is fully established by the evidence.

That which remains for determination is whether the defendant, through its employees, had, or should have had, knowledge of the emergent condition of decedent before medical attention for him was sought by them. It stands as a fact that when decedent was first taken to a doctor it was too late for any attention to benefit him.

Defendant's liability, if any, must rest upon negligence, and the possible negligence of defendant could be only failure to afford medical attention, because of knowledge with which it is charged, when it...