Summary
In Alabama Great Southern R. Co. v. Taylor, 196 Ala. 37, 71 So. 676, approximately nine months after the plaintiff was injured there was testimony tending to show that plaintiff was physically less perfect than he was before the injury; that he complained of and suffered pains in his back and sides; that two of his ribs, healed by then, had been broken; and that there was a depression over the liver, a depression the jury might have concluded was due to the breaking, or nature-wrought repair, of the ribs.
Summary of this case from Baer Brothers, Inc. v. KellerOpinion
No. 34308.
December 23, 1940.
1. CARRIERS.
Where a passenger becomes sick or is injured while en route, no matter how free carrier may be of blame, carrier owes duty under "common humanity doctrine" to render to passenger such reasonable care and attention as common humanity would dictate, but when, on arriving at his destination, passenger has there actually reached hands of his family or friends, the carrier's duty as respects offices of common humanity is at an end.
2. CARRIERS.
Where miscreant threw stone against window of coach in which passenger was seated, causing shattered glass to injure passenger's eye, but passenger, on reaching her destination, which was about 20 miles from scene of accident, was met by friend of family, carrier was not liable under "common humanity doctrine" for failure to obtain physician to treat the passenger at her destination.
3. CARRIERS.
The promise of a conductor of train to perform an act or office not imposed by law upon the carrier is the personal promise of the conductor and does not bind carrier.
4. CARRIERS.
During the existence of an emergency and to the extent that duty imposed by "common humanity doctrine" rests upon a carrier, the conductor of train or highest agent of carrier on ground is empowered to obligate carrier in respect to the services of a physician, but the authority so to do does not extend beyond the limitation of time or place within which the doctrine is operative.
5. CARRIERS.
Where, when train was about 20 miles from passenger's destination, miscreant threw stone against window of coach causing shattered glass to injure passenger's eye, but passenger was met at destination by friend of her family and taken to her home, the carrier was not bound by the conductor's promise to send physician to home of passenger to treat her, and the carrier was not liable for breach of such promise.
APPEAL from circuit court of Lauderdale county, HON. ARTHUR G. BUSBY, Judge.
Bozeman, Cameron Bozeman, and Cameron Wills, all of Meridian, for appellant.
The railroad company is only charged with the duty of common humanity, and liable for failure therein, in such cases as these: (1) If it assumes charge of an injured person (though trespasser) as in Dyche v. Vicksburg, S. P. Railroad Co., 79 Miss. 361, 30 So. 711, or in Y. M.V.R.R. Co. v. Leflar, 168 Miss. 255, 150 So. 220, who is helpless and himself unable to procure medical attention; (2) Or where it leaves a man who was injured while in its care, lying helpless and unconscious alongside the railroad track, as in R.R. Co. v. Byrd, 89 Miss. 308, 42 So. 286, where "for humanity's sake, there should have been something done for him," to bring him to the aid and care of friends or doctors; (3) Or where, as in Hughes v. Gregory Bus Lines, 157 Miss. 374, 128 So. 96, a passenger is injured while in transit, alone and helpless and unattended and needs medical attention, which is available to the carrier at some intermediate stop before the passenger reaches his destination, or come into the care of his family or friends.
In all such cases, based on the duty of common humanity, and in this case, the helpless condition of the injured person, her inability to procure necessary medical attention without the aid of the railroad company, her absence from home and family and friends who could help and care for her is the causa sine qua non of the case.
When the plaintiff reached Meridian, her destination, and immediately came into the care of her friends and family, who were in position to procure for her necessary medical attention with reasonable promptness, there was no longer any duty on the railroad company to provide for her medical attention for the sake of common humanity.
There was no failure on the part of the railroad company in the case at bar to carry the plaintiff to a place where she could receive proper treatment, and that with reasonable promptness.
R.R. Co. v. Byrd, 89 Miss. 308, 42 So. 286.
The promise by a conductor imposes no obligation upon the railroad company to do a thing which the railroad company was not already under obligation by law to do.
Savier v. R.R. Co., 61 Miss. 8; Gage v. R.R. Co., 75 Miss. 17.
L.J. Broadway, of Meridian, for appellee.
In view of the helpless or practically helpless condition of the plaintiff, her poverty stricken circumstances, the presumable ease with which the defendant could have had plaintiff attended and her suffering relieved, the conductor's knowledge and appreciation of the fact that her condition was one calling urgently for attention, his promise to get a doctor and subsequent failure to do so, can it be reasonably said that at the close of the plaintiff's case, the defendant was entitled to a directed verdict of no liability? The writer hereof says "No" and contends that this court has already said "No" in the case of Hughes v. Gregory Bus Lines, 157 Miss. 374, 128 So. 96, and other similar cases.
The appellee's conduct at most could amount to no more than contributory negligence, or a failure to exercise reasonable care to reduce her damages.
Y. M.V.R. Co. v. Fields, 195 So. 489; Tri-State Transit Co. v. Martin, 181 Miss. 388, 179 So. 349.
In Dyche v. Vicksburg, S. P.R.R. Co., 79 Miss. 361, 30 So. 711, referred to and quoted from in appellant's brief, the railroad, which was not liable for the original injury to the deceased, but which had assumed charge of him, did exercise some care and attention toward the injured man, for it procured one of its doctors to attend to him and got him to a hospital, all at its own expense, yet the supreme court said that the jury should have been allowed to pass on the question of whether or not it had exercised toward him "common and ordinary humanity."
Railroads owe to their passengers the consideration and care of common humanity. It matters not how negligent a passenger may have been in producing the injury for which he sues, it does not absolve the railroad from the duty which it owes to him of proper attention after an accident shall have occurred, and if, when injured the railroad neglects this care, which common humanity would dictate, and by reason of this neglect, after the injury has occurred, a passenger suffers damage, he may recover against the railroad company for its dereliction.
Y. M.V.R. Co. v. Byrd, 89 Miss. 308, 42 So. 286.
Appellant's counsel seem to contend that all the railroad has to do is bring the plaintiff to a place where she can receive medical treatment and that with reasonable promptness, evidently meaning thereby a town, city, or community where facilities for treatment are available. That this is not the meaning of the language of the court is clear by reference to the Dyche case, and to Hughes v. Gregory Bus Lines, 157 Miss. 374, 128 So. 96.
When a passenger becomes sick or is injured while en route, no matter how free the carrier may be of any blame in respect to the sickness or injury, the carrier owes to the passenger the consideration and care of common humanity, and if the carrier neglects that care which the enlightened sentiments of common humanity would dictate, and by reason of that neglect after the injury has occurred the passenger suffers damage, the carrier is liable. It is the duty of the carrier to see to it that the passenger is placed where he can receive proper treatment and with reasonable promptness and not leave him in a helpless condition lying on the floor suffering the tortures of an injury such as is shown in this case. And no authority is necessary to refute the proposition that although the duty of the carrier is as above stated while en route, yet no such duty remains beyond the moment the destination mentioned in the ticket is reached. When the carrier knows of the helpless or practically helpless condition of the passenger at the end of the journey, and that the necessity of medical aid is urgent, it would nonetheless fail in its obligation when it simply leaves him lying there than if it had done the like en route.
Dyche v. R.R. Co., 79 Miss. 361, 30 So. 711; Hughes v. Gregory Bus Lines, 157 Miss. 374, 128 So. 96; 10 C.J. 978, sec. 1391; 45 C.J. 841-844; 42 C.J. 640, sec. 51; Y. M.V.R. Co. v. Leflar, 168 Miss. 255, 150 So. 220.
The plaintiff's case was not based upon the promise of the conductor to send a doctor to where she lived, but upon the general neglect of the duty of common humanity by the railroad, and as in the Hughes case, supra, the promise was not more than the duty would have been without the promise, and the declaration alleged that the promise was simply in recognition and confirmation of the duty of the railroad company; the promise was but one of the elements in the plaintiff's case.
Argued orally by A.S. Bozeman, Jr., for appellant.
On the evening in question appellee was a passenger on one of appellant's trains. Her destination was Meridian, and Meridian was her place of residence. When about twenty miles from Meridian, some miscreant threw a stone against a window of the coach in which appellee was seated, causing shattered glass to fly in appellee's direction, a particle of which entered one of appellee's eyes, dangerously and painfully injuring the eye.
The train conductor was, in a short time, made aware of the injury, and according to the testimony of appellee and her witnesses, the conductor promised her that he would notify a company physician to go at once to her home in Meridian, there to give her treatment as soon as she should arrive at her residence. Appellee's testimony is further that when she reached Meridian she was met at the passenger depot by a friend of her family who had been sent by her brother to meet her, and that this friend placed her at once in a taxicab which took her immediately to her home, and that there she awaited the promised arrival of the physician. That she so awaited for more than two hours, suffering intense pain all the while; and, concluding finally that the promise made to her would not be kept, she went in company with her sister and a family friend to a public charity hospital about six blocks from her residence, and there received the necessary treatment.
The version of the conductor and the witnesses who support him is that he told appellee to remain in the waiting room of the passenger station at Meridian and that he would have a company physician to treat her there; that the physician whom he attempted to call could not be reached; and that before he could get in touch with another physician appellee had departed from the station, and that, therefore, the attempt to procure another physician was not pursued.
There is no suggestion that the initial injury was caused through any negligence of the carrier, nor is there any complaint that the carrier could or should have done anything for appellee before she reached Meridian. The complaint is in not sending a physician to treat appellee at her home in pursuance of the promise by the conductor so to do, in respect to which we accept as true the version given by appellee, and not that adduced by the carrier.
The rule is well settled, and has been steadfastly maintained in this State, that when a passenger becomes sick or is injured while en route, no matter how free the carrier may be of blame in respect to the sickness or injury, the carrier owes the duty to render to the passenger such reasonable care and attention as common humanity would dictate. Hughes v. Gregory Bus Lines, 157 Miss. 374, 128 So. 96; 13 C.J.S., Carriers, sec. 754, p. 1414. This obligation is not a product of the contract of carriage — it is due even to trespassers. Dyche v. Vicksburg, S. P. Railroad Co., 79 Miss. 361, 30 So. 711; Yazoo M.V. Railroad Co. v. Leflar, 168 Miss. 255, 150 So. 220.
But the rule runs no further than the reasons which give it existence; whence it follows that when, upon arriving at his destination, the passenger has there actually reached the hands of his family or friends, the duty of the carrier as respects the offices of common humanity is at an end, and the duty goes thence over to the family and the friends. No case in this State and none in any other jurisdiction, so far as we have been able to find extends the doctrine any further than we have above outlined; and our conclusion finds support, if any were needed, in Boyd v. Alabama V. Railway Co., 111 Miss. 12, 15, 71 So. 164.
It is contended, however, that the duty of the carrier was effectively enlarged in the case now before us by the promise of the conductor to send a physician to the home of the passenger. If so enlarged, it was by contract and not by the obligations of the non-contract law; and if by contract, then as in other contracts, a valuable consideration was necessary to its support. It is well settled that the promise of a conductor to perform an act or office not imposed by law upon the carrier is the personal promise of the conductor and does not bind the carrier. Gage v. Illinois Cent. Railroad Co., 75 Miss. 17, 19, 21 So. 657; Sevier v. Vicksburg M. Railroad Co., 61 Miss. 8, 11, 48 Am. Rep. 74. During the existence of an emergency, and to the extent that the duty imposed by the doctrine of common humanity rests upon the carrier, the conductor, or highest agent of the carrier on the ground, is empowered to obligate the carrier in respect to the services of a physician, but the authority so to do does not extend beyond the limitations of time or place within which the doctrine under consideration is operative. See Columbus G. Railroad Co. v. Mississippi Clinic, 153 Miss. 29, 120 So. 203.
Reversed, and judgment here for appellant.