35 Kan. 265 | Kan. | 1886
This proceeding is brought to reverse a judgment obtained against the Union Pacific Railway Company by Dr. G. F. Beatty for his services as a physician and surgeon, and for medicines alleged to have been rendered and furnished upon the employment of the railway company. It appears that on June 11, 1883, a passenger train of the railway company was derailed at a point on the Kansas Central division of the road, between Miltonvale and Clay Center, and that a number of the employés and passengers on the train were injured. At the instance of the station agent and also of the locomotive engineer of the wrecked train, the plaintiff went to the point where the accident occurred, and there found eight persons suffering from injuries received in consequence of the accident, two of whom were the employés of the company. He states that six of the cases proved to be of but minor importance, while the injuries received by three of the passengers were of a more serious nature. The three last named were taken to Miltonvale, where the doctor continued to give them medical and surgical care and attention for ten days thereafter. It further appears that while the plaintiff and the station agent were on their way to the scene of the accident, the station agent was injured by the bursting of a torpedo which had been placed on the track, and the treatment of this injury was also included by the plaintiff in his charge against the company. The plaintiff offered proof tending to show that the division superintendent of the railway company was notified of the accident and of the fact that the doctor was in attendance upon the persons who had been injured, and that he directed the station agent to take the injured persons to Miltonvale, and to continue the plaintiff as physician and surgeon in charge of them. He also attempted to prove that his employment by the station agent and engineer was subsequently ratified by the division superintendent. That the plaintiff was requested by the station agent and engineer to attend and take charge of the injured persons seems not to
“Referring to your claim of $250 for services to passengers injured by train blowing off track on Kansas Central division on night of June 11, we do not consider that the company was responsible or in any fault for the accident, and as you were not employed by the railway company to attend the injured passengers, your claim is respectfully declined.”
The plaintiff recovered for his services to the passengers and employés the full amount of his claim.
At the trial in the district court, as well as here, the plaintiff below relied upon an employment by the division superintendent, and contended that that officer had authority by virtue of his office to bind the company for the medical and surgical service which he had rendered. The principal question in the case is in regard to the authority of the division superintendent in this respect. The court below, in the trial of the cause, proceeded upon the theory that.it was within the general scope of the employment of the division superintendent to contract in behalf of the company for such services as were rendered by the plaintiff.
These considerations are wanting in the case of passengers who have been injured by unavoidable accident. So far as this case is concerned, we must treat and dispose of it upon the theory that the derailment of the train was purely accidental. During the trial the defendant company offered to prove that the train was thrown off the track and wrecked, and the injuries to the passengers and employés were inflicted by a tornado of wind, which was so violent and sudden that it was absolutely impossible for the company, in the exercise of the greatest possible care, to resist or withstand it, and there
In Cox v. Midland Counties Railway Co., 3 Welsb. H. & G. 268, the station-master of the railway company at Birmingha'm, who acted there as chief officer of the passenger and other departments, employed a surgeon to perform a surgical operation upon a passenger injured by a train of the railway company, and the company contested its liability for the service on the ground that its servants had no authority to bind them by contracts of that description, and the court held that there was no liability against the company therefor, because the power to enter into the contracts was not incident either to
It necessarily follows that there was error in the charge of the court for which a new trial must be given; and as the other questions presented by the plaintiff in error may not again arise, it becomes unnecessary to notice them here. The judgment of the district court will be reversed, and the cause remanded for a new trial.