Tippecanoe Loan & Trust Co. v. Cleveland, C., C. & St. L. Ry. Co.

• Decision Date: 08 April 1914
• Docket Number: No. 8075.,8075.
• Citation: 57 Ind.App. 644,104 N.E. 866
• Parties: TIPPECANOE LOAN & TRUST CO. v. CLEVELAND, C., C. & ST. L. RY. CO.
• Court: Indiana Appellate Court

57 Ind.App. 644

104 N.E. 866

TIPPECANOE LOAN & TRUST CO.

v.CLEVELAND, C., C. & ST. L. RY. CO.

No. 8075.

Appellate Court of Indiana, Division No. 1.

April 8, 1914.

Appeal from Circuit Court, Tippecanoe County; Henry Vinton, Judge.

Action by the Tippecanoe Loan & Trust Company, administrator, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for defendant on the answers to interrogatories notwithstanding a general verdict for plaintiff, plaintiff appeals. Reversed, with directions.Wilson & Quinn and Thompson & McAdams, all of Lafayette, for appellant. Stuart, Hammond & Simms, of Lafayette, for appellee.

LAIRY, C. J.

This action was brought to recover damages resulting from the death of George Arbegust. The facts disclosed by the record show that he received an injury while in the employ of appellee railway company as a section hand. On the morning of January 18, 1909, a passenger train operated by appellee was running in a southeasterly direction on its lines between the city of Lafayette and the city of Indianapolis. At a place a few miles southeast of Lafayette this train collided with a hand car which George Arbegust and another workman were, at the time, attempting to remove from the track, and as a result George Arbegust was injured. His leg was broken and severely cut, and he was rendered unconscious and incapable of taking care of himself. After the injury the trainmen took charge of Arbegust, and placed him in the baggage car of the train and carried him to Colfax, where a physician was called to dress his wounds, after which he was returned, on the afternoon of the same day, to Lafayette and placed in St. Elizabeth's Hospital, and the physician employed by appellee called to attend him. After he was placed in the hospital blood poisoning developed and it became necessary to amputate his leg. The leg was amputated, but he continued to suffer from the effects of blood poisoning until he died from that cause on August 9, 1909. The case went to trial on a single paragraph of complaint, to which a general denial was filed. A general verdict was returned in favor of appellant, and with this verdict the jury returned answers to a large number of interrogatories. The court, on motion of appellee, rendered judgment in its favor on the answers to interrogatories notwithstanding the general verdict, and overruled the motion of appellant for a judgment in its favor on the general verdict. These rulings are assigned as error by appellant, while appellee assigns as cross-error that the court erred in overruling its demurrer to the complaint.

[1] The complaint does not proceed upon the theory that appellee was guilty of any negligence in causing the original injury to Arbegust, but the gravamen of the action is the negligence of appellee, after the decedent's injury, and after appellee's servants had taken the injured and unconscious man in charge, in failing to procure medical and surgical aid for him with reasonable dispatch, or to place him in a hospital where such aid could be furnished. There are some averments in the complaint to the effect that the company's physician at Colfax, who was the first to treat the injured man, was negligent in failing to disinfect the wound, and to remove the gravel, sand, cinders, and other foreign substances from the wound, and that as a result blood poisoning ensued, which resulted finally in death. It is well settled in this state that a railway company cannot be held liable for damages resulting to one of its injured employés as the result of the negligence of a surgeon called by the company to render surgical aid to such employé. Pittsburgh, etc., R. Co. v. Sullivan, 141 Ind. 83, 40 N. E. 138, 27 L. R. A. 840, 50 Am. St. Rep. 313, and cases there cited. This complaint does not aver that the appellee or its agents were negligent in selecting and employing an unskilled or incompetent surgeon; and, as the appellee cannot be held liable for the negligence or unskillfulness of the surgeon which it called, no recovery can be based upon the alleged negligence of the surgeon. As before stated the question of the sufficiency of the complaint depends entirely upon the facts alleged to show negligence on the part of the train crew of appellee after they had taken the injured man into their custody.

[2] If an employé of a railroad company is injured as a result of hazards to which his employment exposes him, and, if his injuries are of such a nature as to render him incapable of caring for himself, it becomes the duty of the company to take such steps as are reasonably necessary and proper, under the circumstances, to prevent an aggravation of the injury through exposure, or for the want of medical or surgical assistance. Under such circumstances, if the servants of the company knowingly leave such injured person to die of exposure, or to bleed to death from his wounds, a legal responsibility for such consequences will be imposed upon the company; and, if they take him into their custody, they must exercise reasonable care in the treatment accorded him. Under such circumstances the common instincts of humanity require that the helpless injured person should be taken in charge and removed to a place of safety, and that, if necessary, medical or surgical aid should be provided. This duty has been recognized by the Supreme Court of this state as one which arises in extraordinary cases where medical or surgical assistance is imperatively required to save life, or to prevent further serious bodily injury. It is said that the duty arises with the emergency, and with it expires. Ohio & Miss. Ry. Co. v. Early, 141 Ind. 73, 40 N. E. 257, 28 L. R. A. 546;Terre Haute, etc., R. Co. v. McMurray, 98 Ind. 358, 49 Am. Rep. 752.

In some jurisdictions the doctrine has been extended much further than we are required to go in deciding this case. It has been held to apply to cases where one party has been so injured as to render him helpless by an instrumentality under the control of another, even though no relation of master and servant, or carrier and passenger, existed at the time. It has been said that the mere happening of an accident of this kind creates a relation which gives rise to a legal duty to render such aid to the injured party as may be reasonably necessary to save his life, or to prevent a serious aggravation of his injuries, and that this subsequent duty does not depend upon the negligence of the one party, or the freedom of the other party from contributory negligence, but that it exists irrespective of any legal responsibility for the original injury. Northern C. R. Co. v. State, 29 Md. 420, 96 Am. Dec. 545;Whitesides v. Southern R. Co., 128 N. C. 229, 38 S. E. 878;Dyche v. Vicksburg, etc., R. Co., 79 Miss. 361, 30 South. 711;Depue v. Flatau, 100 Minn. 299, 111 N. W. 1, 8 L. R. A. (N. S.) 485;Terre Haute, etc., R. Co. v. McMurray, 98 Ind....