Opinion
No. 35064.
November 2, 1942.
1. MASTER AND SERVANT.
Where part of train had been left on main line near a switch upon brakeman's signal so as to leave an insufficient clearance for a person to pass end of stationary cars while riding on a car being backed from the main line, brakeman "assumed the risk" of the impending danger and railroad was not negligent because an employee had failed to warn brakeman when brakeman was crushed against the stationary car while riding past it, where employee on the moving car had cautioned the engineer within 40 feet of the stationary car and had given an emergency stop signal, an outcry would have served no useful purpose, and the employee had only sufficient time to signal the engineer (Federal Employers' Liability Act, sec. 1 et seq., 45 U.S.C.A., sec. 51 et seq.).
2. MASTER AND SERVANT.
Evidence of negligence of other train employees under the "humanitarian doctrine" in failing to transport a seriously injured trainman by motor ambulance to a city hospital 28 miles away and in attempting to transport the injured brakeman by freight train to a hospital 59 miles away, the brakeman dying before arrival was insufficient for jury, where the fault if any of the trainmen was an error of judgment for which the railroad would not be liable.
APPEAL from the circuit court of Monroe county, HON. WM. H. INZER, Judge.
D.W. Houston, Sr. Jr., of Aberdeen, and M.G. Roberts, E.G. Nahler, and A.P. Stewart, all of St. Louis, for appellants and cross-appellees.
When one is struck down with injuries, as plaintiff's decedent was, whether trespasser or otherwise, and the defendants or their agents, servants, and employees called a reputable and competent physician or surgeon immediately thereafter, and such injured person is committed to the care and treatment of such reputable and competent physician, who assumed the charge committed to him, as was done here, and is undisputed as a fact, then the responsibility of defendants ceased, and if there was an error in judgment afterwards, it was the error and judgment of the physician and surgeon for which no liability could attach to defendants, and for which they would not be responsible or liable in damages; and this is true, whether the action is governed by a state statute or the Federal Employers' Liability Act.
New Orleans N.E.R. Co. v. Humphreys, 107 Miss. 396, 65 So. 497; Dyche v. Vicksburg S. P.R. Co., 79 Miss. 361, 30 So. 711; Yazoo M.V.R. Co. v. Byrd, 89 Miss. 308, 42 So. 286; Yazoo M.V.R. Co. v. Leflar, 168 Miss. 255, 150 So. 220; Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 178 So. 80; P.C.C. St. L.R. Co. v. Sullivan (Ind.), 27 L.R.A. 840; So. Florida R. Co. v. Price (Fla.), 13 So. 638; A.C.L. Ry. Co. v. Whitney (Fla.), 56 So. 937; Kendall v. L. N.R. Co., 25 Ky. 793, 76 S.W. 376; Gates v. L. N.R. Co., 5 A.L.R. 507, 213 S.W. 564.
The verdict from the whole evidence in the case is based upon a mere speculation, conjecture, and guess upon the part of the jury, and is not founded upon testimony having any probative value.
It is not surprising in the least that the lower court at the conclusion of plaintiff's evidence on motion of defendants to exclude, excluded same as to the initial negligence and injuries charged, especially when that evidence itself showed clearly and convincingly that there was no negligence upon the part of the defendants or its other employees, but that such injuries as plaintiff's decedent suffered were the sole result of his own gross negligence in "setting up a trap" in which he was later caught, and in consequence of which he later died.
Favre v. L. N.R. Co., 180 Miss. 843, 178 So. 327; Baugham, Admr., v. N.Y.P. N.R. Co., 241 U.S. 236, 60 L.Ed. 977; Reese, Admr., v. P. R. Ry. Co., 239 U.S. 462, 60 L.Ed. 384.
Frank S. Leftwich, of Aberdeen and James A. Cunningham, of Booneville, for appellee and cross-appellant.
It is the contention of appellants that when they brought their doctor down to that train and asked him to go to Amory with them, after finding hospitalization was what the man needed, that they had complied to all of their obligations to this critically injured man who with their reasonable aid was in reach of a hospital where they could have obtained ambulance and hospital service immediately.
The question of the quickest way to the hospital was not a medical question; it was a thing that the conductor of that train knew as much about as Dr. Parker and it is not shown that he made any inquiry at all about the services of an ambulance after Dr. Parker had told him the man must be gotten to a hospital the quickest way possible.
The conductor was in charge of his train and everybody on it. He was the alter ego of the railroad receivers, and the jury thought he was negligent and no common sense view could see it to the contrary.
One who undertakes to think this out, should think a little further and consider if it was his young son with the broken pelvis and a hemorrhage so as to require him to be sent to a hospital the quickest way possible. When so considered, would he think a conductor with hospitals and ambulances available, exercised due care by putting him on a freight train and running some fifty or sixty miles under these conditions? Another thing that condemns the conductor is that he parked his train and waited for an exchange of engines and delayed at Columbus, Mississippi, for a considerable time where there were two good hospitals and availed himself of neither, and yet carried this man on away from the hospital toward Amory, where he died en route.
Dyche v. Vicksburg S. P.R. Co., 79 Miss. 361, 30 So. 711; Hughes v. Gregory Bus Lines, Inc., 157 Miss. 374, 128 So. 96; Yazoo M.V.R. Co. v. Leflar, 168 Miss. 255, 150 So. 220; Alabama Great Southern R. Co. v. Taylor, 190 Miss. 69, 199 So. 310.
Gregory was a senior brakeman and he was familiar with this curve in the dark, and from his familiarity with the situation he discovered the peril of his fellow brakeman just eight feet from him, facing him and he could have done something to inform plaintiffs' decedent of his dangerous situation, and he negligently omitted to do anything except to undertake to stop the train, which was an ineffectual thing to do on his part.
Christian v. Illinois Cent. R. Co., 70 Miss. 398, 12 So. 710; Southern Ry. Co. v. Floyd, 99 Miss. 519, 55 So. 287; Fuller v. Illinois Cent. R. Co., 100 Miss. 705, 56 So. 783; L. N.R. Co. v. Hurt, 110 Ala. 34, 13 So. 130.
The fact that they were fellow servants does not aid the cross appellees for the reason that they were engaged in interstate commerce and the fellow servant rule did not apply.
Elliott v. Illinois Cent. R. Co., 111 Miss. 426, 71 So. 741.
The senior brakeman, Gregory, after obtaining information that the train was required to back in on the west leg of the Y switch, negligently omitted to examine the switch and its condition as he passed up through the yards and did not ascertain whether or not it was dangerous to pass where this car was.
2nd Restatement of Torts, Sec. 302.
We insist that the statute which requires all questions of negligence to be submitted to a jury has not been definitely abolished and that these questions should have been submitted to the jury under proper instructions.
The administrator brings this suit against the appellants, as trustees in bankruptcy, operating the St. Louis-San Francisco Railway system in interstate commerce, seeking to recover damages under the Federal Employers' Liability Act, 45 U.S.C.A., Sec. 51 et seq. because of a fatal injury sustained by N.F. Egger, a brakeman, whose body was caught and mashed between two box cars and the pelvis bone crushed, while he was at work about the duties of such employment on a freight train at Aliceville, Alabama, traveling en route to the city of Amory, Mississippi, and which resulted in the death of the said Egger, due to his suffering from the shock caused by the injury, before such train could arrive at this intended destination, where he was then being carried for surgical treatment and hospitalization.
Appellee relies for a recovery of damages upon the alleged negligence of the railway company in causing the injury complained of, and also upon its alleged failure to observe the dictates of common humanity in getting this injured employee to a hospital for treatment with reasonable promptness after undertaking to remove him from the freight yard at Aliceville, Alabama, immediately after the accident, without regard to whether or not the said defendant was liable for the initial injury to said employee.
The court below granted a peremptory instruction in favor of the railway company against liability on the first ground above stated, but submitted the case to the jury under instructions as to whether under all the facts and circumstances the humanitarian doctrine thus invoked made it incumbent upon the railway company to exercise greater care to preserve the life or promote the comfort and well-being of the injured man than was exercised by the train crew on the occasion complained of.
There was a verdict in favor of the appellee plaintiff for $5,000, from which the defendant appeals, and there is a cross-appeal by the plaintiff from the trial court's action in holding as a matter of law that the defendant was not shown to have been negligent in connection with the accident whereby the initial injury was sustained.
We deem it necessary to a proper understanding of the case that we consider in their reverse order the questions thus presented for decision.
On the occasion of the accident the freight train was traveling in a general northwesterly direction. Before reaching the depot at Aliceville, it was necessary to stop for the crossing of the Alabama, Tennessee Northern Railroad, which runs approximately east and west. Thereupon, the train was cut in two parts by the head-brakeman Egger, and several of the cars were carried north of the crossing and left between it and the switch where a leg of the wye leads off in a southwesterly direction from the main line, the engineer having stopped the train at the point where this brakeman had signaled for him to do so for that purpose. He then cut the engine loose from the north end of this cut of cars immediately in front of a C. G. car, so as to leave an insufficient clearance between it, when thus left on the main line, and the wye switch for a person to pass the north end thereof while riding on the east side of another box car when the latter was being backed southward onto the west leg of the wye from the main line during a switching operation without such person incurring the danger of being caught and injured between the two cars. The accident occurred at night when the said brakeman was thus riding on the south end of such a car which had been picked up elsewhere on the yard after the engine had been thus cut loose from the C. G. car and was being backed onto the wye track, at a time when no other member of the train crew knew of the insufficient clearance which he had left between the C. G. car on the main line and the cars that were being backed onto the wye, except that another employee, Gregory, who was serving as brakeman-flagman on the same train and whose duties had called him elsewhere on the yard prior to this particular movement of the train, was then riding on the west side of the south end of the same car about eight feet from Egger and saw through the darkness the bulk of the C. G. car for the first time when they got within forty or 50 feet thereof. He immediately gave a cautionary slow signal to the engineer, and presently, when he realized that there might be insufficient clearance for Egger to pass safely through the trap which he had unfortunately set for himself, gave the "washout" or emergency signal, with the result that everything possible was done to stop the train without delay. It was too late; and when the brakeman, Egger, who had doubtless realized his perilous predicament as early as Gregory did, undertook to swing around in front of the car on which they were riding, he was caught between it and the C. G. car, resulting in the fatal tragedy hereinbefore described.
The foregoing version of the material circumstances surrounding the accident was given by the said Gregory, who was introduced by the plaintiff as the only eye-witness thereto, or person who ever claimed to know anything about how the injury occurred. Consequently, no negligence whatsoever was shown on the part of the railway company in connection therewith. Immediately before he was caught between the two cars, Egger had thrown the wye switch at the scene of the accident, climbed back onto his train, assumed the risk of the impending danger, and later explained to Gregory that "I thought that I could swing around to the front of the car."
But it is urged that Gregory should have made an outcry of warning. It is obvious, however, that such warning would have only served to attract attention to a situation on which the mind of Egger was already fixed and that it could have served no useful purpose. Moreover, Gregory only had sufficient time to give the required signal to the engineer after he realized the danger then being instantly encountered.
The proof under the second count of the declaration disclosed that as soon as the injured man fell to the ground, Gregory went to his aid, summoned the other members of the crew, and then went straightway to telephone for the local physician, Dr. S.R. Parker, who answered the telephone promptly at his home and reached the scene of the accident before Gregory had time to return. Dr. Parker, a reputable and competent physician, took charge of the patient at the request of the train crew, and, after first considering the advisability of carrying him to his office for examination and treatment, decided that he was severely injured and suffering from shock and that he should be placed in the caboose of the train, made as comfortable as possible, and carried to a hospital for surgical treatment. He was accordingly placed on the train pursuant to the physician's own judgment and advice, as stated by him upon the trial, and as soon as the necessary switching could be completed and the main line cleared of the obstructing cars, the train left for the City of Amory, a distance of fifty-nine miles, where a good surgeon was notified to meet the train at the station and to have an ambulance available. Dr. Parker accompanied the patient on the train, caused the fire in the caboose to be replenished with fuel so as to keep the car warm and comfortable, administered to the suffering of the injured man by giving him hypodermics of morphine until he died within eight or ten minutes after leaving Columbus, which was thirty-two miles from Aliceville, and the only stop made by the train on its run to Amory.
It was shown that there were good hospitals at Columbus, but the proof fails to disclose that the patient could have been removed from the train and placed in one of these hospitals in time to have obtained any substantial relief earlier than the hour at which he actually died, soon after the train left Columbus as aforesaid. Nor is it seriously contended that common humanity required that this be done; but it is the position of the appellee that the patient should have been placed in the local ambulance at Aliceville, Alabama, as soon as it could have been made available, and carried to a hospital at Macon, Mississippi, a distance of twenty-eight miles over a gravelled road, which, Dr. Parker testified, was usually bad at that time of the year, it being a night in February, and upon the theory that this would have afforded an opportunity for him to be given glucose and blood transfusions at such hospital within approximately one hour after leaving Aliceville, there being no local hospital facilities at that place.
When the train arrived at the City of Amory, the body was taken to an undertaking establishment, where it was discovered that the pelvis bone thereof had been so badly crushed or broken and the kidney area bruised and badly injured that an accumulation of blood from hemorrhages had gathered in the abdominal cavity to the extent of one-half gallon in quantity, the withdrawal of which caused the whole left side of the body to collapse. Two physicians thereupon examined the body, and then stated that, in their opinion, nothing could have been done to save the life of the injured man even if he had been placed in a hospital immediately after the accident. Dr. Parker concurred in this view, and these three physicians were the only ones that testified at the trial who had seen the patient. There were other physicians, however, who testified that had the patient been carried by ambulance and placed in the hospital at Macon within about an hour after the accident, and given glucose and blood transfusions to relieve his shock, he would have had "a better chance to live," or would have "probably recovered," or that he would "likely have lived." The jury acting upon their testimony alone could have speculated or conjectured that the patient would have had some chance to live if the train crew had adopted this plan of handling the matter, assuming that the jury would have been justified in disregarding the common-sense view of the three physicians who had personally observed the extent of his injuries.
But, assuming that the train crew, instead of Dr. Parker, had taken full responsibility of undertaking to transport this injured employee to the hospital at Amory, where most of the employees on that division of the railroad sustaining personal injuries were accustomed to be treated by the surgeon there in charge, and assuming further that they used bad judgment in so doing and probably defeated his chance of living, the most that can be said of their course of conduct is that they used bad judgment in deciding what was best to be done under the circumstances. There is a vast difference between such a course and a failure to observe the dictates of common humanity. The injured man was no stranger to them, but was their fellow workman. There existed every inducement for them to do what they thought was best for his comfort and well-being, and we find no fact or circumstance in the case to indicate that they were actuated by any spirit of indifference towards the dictates of common humanity in the situation with which they were confronted at the time.
In our opinion, the case is controlled by the principles announced in New Orleans N.E.R. Co. v. Humphreys, 107 Miss. 396, 65 So. 497, 498, wherein the court assumed that the railroad company was under a duty to treat the trespasser there involved with ordinary humanity, and, further, that it had assumed charge of him in his injured condition; and then held that in refusing to transport him to Hattiesburg on the passenger train on which he had sustained the injury, and in calling a physician instead to treat him where he was left at Poplarville, the railroad employees had done "what was apparently the proper thing to do; even if they did not, there was nothing in their actions to authorize one to believe that they ignored the dictates of common humanity." In that case the physician testified that the man with the crushed leg should have been removed as early as possible after the injury was discovered, and that, in his opinion, the man would have survived had he been carried to Hattiesburg and placed in the hands of competent surgeons earlier than the hour at which he was later put on a freight train and carried there by the said physician. The court said that "If a mistake was made, it was a mistake of judgment, and for this mistake the railroad is not liable."
We are, therefore, of the opinion that a peremptory instruction should have been granted in favor of the railway company on both of the issues involved.
Reversed, and judgment here for the appellant on direct appeal, and affirmed on cross-appeal.