Stanley's Administrator v. Duvin Coal Co.

• Decision Date: 10 March 1931
• Citation: 237 Ky. 813
• Parties: Stanley's Administrator v. Duvin Coal Company.
• Court: United States State Supreme Court — District of Kentucky

237 Ky. 813

Stanley's Administrator v. Duvin Coal Company.

Court of Appeals of Kentucky.

Decided March 10, 1931.

1. Master and Servant. — Employer must take reasonably necessary action to furnish injured employee with suitable medical aid, if there are no members of employee's family present who are capable of performing and do undertake to perform such service.

2. Master and Servant. — Master voluntarily furnishing medical aid to injured employee is only bound to exercise reasonable care in selecting physician.

3. Master and Servant. — Master exercising reasonable care in selecting physician for injured employee is not liable for subsequent negligence of physician.

4. Trial. — Plaintiff making out case is entitled to have jury pass on issues however much defendant's evidence may overbalance plaintiff's evidence.

5. Trial. — Scintilla of evidence requires case to be submitted to jury.

6. Trial. — Court may direct verdict for defendant if, when case is submitted to jury, it will be bound to find verdict for defendant.

7. Negligence. — Where evidence is equally consistent with either existence or nonexistence of negligence, court should instruct peremptorily.

8. Master and Servant. — Where physician properly selected by employer determined necessity of employee's going to hospital and treatment he should receive on way, employer held not liable for death resulting from loss of blood while employee was being conveyed to hospital.

Appeal from Webster Circuit Court.

HENSON & TAYLOR and VERT C. FRASER for appellant.

WITHERS & LISMAN and J.C. CANNADAY for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming

This is an action by the administrator of Joseph I. Stanley against the appellee for negligently causing his death by its failure to furnish necessary and proper medical attention to him as an injured employee.

Joseph I. Stanley was an employee of appellee in Webster county, and while so employed he was engaged in mining coal, on the 12th day of December, 1929, when coal fell on him, breaking both bones in his left leg below the knee, from which the flesh for some five or six inches was cut and lacerated. His fellow miners rendered him first aid, by putting bandages around his leg, and then putting it in splints. They carried him out of the mine within twenty minutes after he received first aid. While he was in the mine a physician was called by telephone. The regular physicians of appellee could not be reached by telephone, and Dr. Snow was communicated with and he arrived at the first aid building at the mine before Stanley was carried there from the mine. He was a graduate in medicine and surgery of the University of Louisville, and had been engaged in the general practice since his graduation. He had resided and engaged in his practice at Providence since 1919. On his examination, he found Stanley suffering from a compound fracture of his left leg. His testimony is so vital and important to a correct and proper determination of the question of first importance in this case, that we prefer to use his own language, which is as follows:

"Q. Were you called in to treat Joseph Iley Stanley? A. Yes, sir.

"Q. In December for a compound fracture, suffering from a compound fracture? A. Yes, sir.

"Q. What condition did you find him in? A. I was at the mine when they brought him out. I got out to the mine just a few minutes before they got him out. When they brought him out they had it splinted up to about his knee on his left leg bandaged up.

"Q. Was he conscious at the time? A. Yes sir.

"Q. What was the condition of his heart action? A. He was just as nearly normal as you would find a fellow, his heart was good and his breathing good, he was perfectly conscious. He was in a good condition, but as dirty as could be.

"Q. Did he object to any treatment you gave him? A. No. sir.

"Q. Did he submit to your treatment without any objection at all? A. Yes sir.

"Q. Did you inform him he was going to the hospital? A. Yes sir.

"Q. Did he make any objection to going to the hospital? A. No. sir.

"Q. What did he say about going to the hospital? A. When I told him that he was going to have to go to the hospital he said `Where are you going to send me' and Jimmie Gold said, `They send their patients to Hopkinsville.' He said, `I would like a little rather to go to Evansville because my brother or sister or some of his folks, are there.' And Jimmie says, `They send all of them to Hopkinsville' and he said, `That is all right then.'

"Q. Did he say anything to you, or you to him about you going with him? A. He wanted to know who was going to take him, and I told him they had sent for the ambulance and Mr. Montgomery.

"Q. Did he ask whether you were going? A. He said, `Are you going along with me?' and I said `No, I don't think it is necessary. Mr. Montgomery is going.' And he said, `That will be all right.'

"Q. He agreed to that? A. Yes sir.

"Q. And made no objection whatever? A. No sir.

"Q. Did Mr. Aldridge say anything to him about you going along? A. He asked did I think it necessary to go with him and I said I didn't think so. There wasn't any bleeding and nothing showed it was necessary for me to go, that I could go but all that would be necessary was to send some fellow with him that so in going over rough places he could keep that leg from bouncing around.

"Q. There was nothing to indicate to you that he would suffer any later bleeding from that injury? A. He wasn't bleeding and didn't bleed while dressing him and he hadn't bled any when he left, the dressing wasn't soiled at all.

"Q. What is to be generally and usually expected from such a case as this? A. They usually if an artery is cut they bleed.

"Q. Immediately? A. At the time when it is cut.

"Q. It would bleed then? A. Then.

"Q. Is it unusual to have them bleed later when they do not at the time? A. I never had one to.

"Q. You have had considerable experience in such case as this? A. Yes sir.

"Q. Doctor to what might this subsequent bleeding have been attributed? A. I don't know. There was nothing to indicate it was going to bleed. It hadn't bled any when they brought him out and I would say four tablespoons of blood would be a big amount from the time the dressing was put on in the mine until we got him dressed and left, and I doubt it bled that much.

"Q. Such bleeding as that, where was the bleeding coming from, artery or vein? A. It just kind of oozed a little from the edge of the wound.

"Q. From the capillaries and veins? A. Just out of the edge of the skin.

"Q. There was no deep bleeding at all? A. No. sir.

"Q. Is there any difference in the appearance of arterial bleeding and from the veins? A. Arterial bleeding is bright and venus dark.

"Q. What is the difference in the way they flow? A. If it is an artery of any size it spurts, and if it is a vein it is just a gradual ooze.

"Q. There wasn't any flowing of blood at all? A. No. sir, there wasn't any scarcely there."

At the time Stanley received his injury. John Aldridge was superintendent of the mine of appellee. As such he telephoned and secured the services of Dr. Snow before Stanley was removed from the mine. Stanley made no request of Mr. Aldridge and gave no direction to him as to whom he should employ to convey him to the hospital. He made no objection to being sent to the hospital. He was conscious at all times, and did not request to be sent to a hospital.

Mr. Montgomery, a man sixty years of age, and who conveyed him to the Hopkinsville hospital, owned his own equipment, which was modern and up to date. He had been engaged in operating an ambulance for about three years, but had been an undertaker for several years longer. He had studied anatomy and knew to a limited extent how to administer first aid, and how to stop the flow of arterial blood. His son, Earl Montgomery, was chauffeur of the ambulance and had had several years' experience in driving. Mr. Montgomery states there was no vibration or jolting of the ambulance more than usual on the trip to the hospital. He rode inside the ambulance with Stanley, who said nothing to him during the trip, except on one occasion he stated he was tired and asked assistance in turning over. He was conscious at least part of the time on the trip to Hopkinsville. At the time he asked for assistance in turning over he seemed to be strong. He seemed to fall asleep several miles before the ambulance reached Hopkinsville, but there was nothing to indicate he was not all right. He was breathing natural and gave no indication of losing blood. No examination was made of him while on the road. Hopkinsville is about fifty-five miles from appellee's mine. On arriving at Hopkinsville, he appeared to be sleeping soundly. When the physicians there examined him they found his pulse very feeble, hardly perceptible. His respiration indicated hemorrhage from either deficient blood or blood of defective quality. In their opinion his condition and death resulted from loss of blood. A metal posterior splint and dressing of antiseptic guaze and cotton were around his limb. He lived about three and one-half hours after his arrival.

On a trial before a jury, at the close of the evidence of appellant, the appellee entered its motion for an instruction directing the jury to find a verdict for it. The court overruled its motion. After the evidence in its behalf was introduced, it renewed its motion for a peremptory instruction which the court gave to the jury. The jury returned its verdict accordingly and judgment was entered in conformity thereto, from which this appeal was taken.

The appellant introduced in his behalf the appellee's superintendent. In behalf of appellee Dr. Snow testified.

The superintendent of appellee assumed authority to, and did, secure transportation for the injured servant from the time he reached the first aid house at the mine until he was placed in the ambulance. Dr. Snow assumed control and management of...