New Orleans & N. E. R. v. Humphreys

65 So. 497 | Miss. | 1914

Cook, J.,

delivered the opinion of the court.

Appellee sued the appellant railroad company for damages for the neglect and want of care on the part of the railroad company for her husband after he had been injured by a railroad accident. The jury returned a verdict in appellee’s favor for five thousand dollars, and from a judgment based upon this verdict this appeal is prosecuted.

It is not claimed that the railroad company was in any way responsible for the accident, or is any way liable for the original injury to appellee’s husband, and it is con-ceded that he was a trespasser at the time he received the hurt. When the passenger train of appellee reached Poplarville, at ten o’clock on the night of the 5th of April, 1912, Mr. Humphreys was found on the pilot or ‘ ‘ cowcatcher ’ ’ of the locomotive with a shattered leg, absolutely helpless, and covered with the excrement of some animal, presumably a cow or a horse. The theory is that a few miles south of Poplarville the locomotive struck a cow or horse, which was thrown on the pilot and caused the injury to Mr. Humphreys, who it is conjectured was stealing a ride. His leg was shattered from the knee to the foot. "When it was discovered that Mr. Humphreys was injured, two of the employees of the railroad assisted him from the pilot, and carried him to the depot platform, and laid him down there. Some bystanders removed the injured man to a truck soon after he was placed on the platform. In removing him from the pilot of the locomotive to the platform two railroad employees each took him under each arm, and this caused his wounded leg to drag on the ground, doubtless causing him much pain. It is sure that the injured man suffered excruciating pain, and that he begged the railroad employees to take him to Hattiesburg, his home.

It appears that the railroad people thought it best to leave him where he was, and to call a physician to treat him there. At any rate, they refused to take him to Hattiesburg on that train, but did send for a physician, who arrived on the scene about the time, or soon after, the train proceeded on its way. The physician took charge of the injured man and administered opiates to relieve his suffering, but did not do anything more. It seems that a fast freight train bound for Hattiesburg was due to arrive at Poplarville about thirty minutes after the passenger train, but on that night the freight was something more than an hour late. When the freight train arrived, Humphreys was put upon the train and carried to Hattiesburg, accompanied by the physician. When he reached Hattiesburg, Ilomphreys was placed in the hands of his friends and taken to the hospital, where his leg was amputated. He died in a few days after the operation.

It is claimed that, if Humphreys had been carried to Hattiesburg on the passenger train, he would not have •died. To prove this, a physician testified that the injured leg should have been removed as early as possible after the injury was discovered, and, in his opinion, the man would have survived, had he been carried on to Hat-tiesburg and placed in the hands of competent surgeons. This physician also said that it was highly important that the filth should have been removed at once. The witness testified at great length, and described in detail how the injured man should have been treated. The evidence shows that Humphreys did not receive the treatment which the expert said was necessary.

The theory seems to be that when the employees of the railroad removed the wounded trespasser from the pilot-of the locomotive and placed him on the platform, it became the duty of the railroad company to do everything possible to insure the comfort and safety of the trespasser. At the most, if the railroad company assumed •charge of the injured man, it was charged with no higher duty to him than ordinary or common humanity. It is •clear that the train was not equipped to care for a man injured as this man was, and it is also clear that he could not have had the care of a skilled surgeon if he had been taken away on the passenger train. It will be assumed “that train crews could not know what was best for the man, .and- surely, when they called a physician, who it is presumed did know, and placed him in charge of the physician, it cannot be said that they did not treat him with common humanity.

From our standpoint, the railroad employees did what “was apparently the proper thing to do; and, even if they -did not, there is nothing in their actions to authorize one to believe that they ignored the dictates of common humanity. In reversing this case we have assumed that the railroad company was under duty to treat the trespasser with ordinary humanity, and, further, that it assumed charge of him when they took him from the locomotive. If a mistake was made, it was a mistake of judgment, and for this mistake the railroad is not liable. The peremptory instruction should have been given.

Reversed and remanded.