124 P. 505 | Wyo. | 1912
The plaintiff in error as plaintiff filed his petition against the defendant in error as defendant in the district court of Uinta County which, omitting the title, is in words and figures as follows, to-wit:
“The plaintiff complains of the defendant and for a cause of action alleges as follows, to-wit:
1. That the defendant is and at all the times mentioned in this petition was a corporation organized and existing under and by virtue of the laws of Utah and owned and operated a line of railroad in the states of Utah and Wyoming and owned, operated and controlled a round-house and repair shops at the town of Evanston in the State of Wyoming.
2. That in the month of February, 1906, and for a long time prior thereto, the plaintiff was in the employ of the defendant in said shops at the said town of Evanston as a blacksmith helper at the agreed compensation of 22 cents per hour; that a part of said agreement and contract of employment between plaintiff and defendant was that the plaintiff should pay to the defendant each month while in the employ of the defendant out of his wages as such employee the sum of 50 cents per month for the support and maintenance of the defendant’s hospital situated at the City of Ogden in the State of Utah; that in consideration of said payment of said sum of money to the defendant from month to month, the defendant contracted and agreed with the plaintiff to furnish plaintiff with hospital accommcT-dations in said hospital at Ogden and to provide and furnish trained and capable nurses and skilled and competent physicians and surgeons in said hospital for the- care and treatment of the plaintiff in the event that he should become sick or disabled or accidentally injured while working for the defendant and in the regular course of his employment and*398 contracted and agreed for the consideration aforesaid to furnish the plaintiff with the services of skilled and competent physicians and trained, and capable nurses in case of any injury to the plaintiff while working for the defendant as. aforesaid.
3. That under said contract of employment as aforesaid and in consideration of the payment by the plaintiff to the defendant from month to month of the said sum of money while plaintiff worked for the defendant, it became and was the duty of the defendant, in case the plaintiff should become injured while working for defendant under said contract, to furnish the plaintiff with proper hospital accommodations in said hospital and to treat him properly therein, and to furnish him the services of skilful and competent physicians and surgeons and trained and capable nurses, and to use and exercise due and reasonable care in the selection of such nurses and physicians and surgeons, but the plaintiff alleges that on the contrary the defendant, neglecting and disregarding its duty in the premises and under said contract and agreement with the plaintiff, when the plaintiff became injured while working for the defendant as hereinafter alleged, did not furnish the plaintiff with proper hospital accommodations in said hospital and did not treat him properly therein, and did not furnish him the services of skilful or competent physicians or surgeons or of trained or capable nurses, and did not use or exercise due or reasonable care in the selection of such nurses and physicians and surgeons as were furnished to the plaintiff.
4. And plaintiff alleges that in the month of February, 1906, while working for the defendant at its shops in the said town of Evanston, during working hours and in the regular course of his employment by defendant under said contract and agreement, he was accidentally injured by straining himself in lifting a steel axle; that for a time the plaintiff was treated for said injury at said town of Evans-ton by Dr. J. L. Wicks as the local surgeon, and physician, of the defendant at said town of Evanston; that not re*399 covering or improving under said treatment of said Dr. Wicks, the plaintiff, in the month of September, 1906, was sent by the defendant to its said hospital at Ogden for treatment and was placed by the defendant under the care of one Dr. R. S. Joyce; that plaintiff remained in said hospital and was treated by the said Dr. Joyce until the month of November, 1906, 'when he was discharged by the defendant from said hospital as incurable.
5. And plaintiff alleges that said Dr. Joyce so carelessly and negligently treated and operated upon the plaintiff that he then and thereby became permanently and incurably disabled and incapacitated for work of any kind as long as he shall live; that said Dr. Joyce carelessly and negligently and unnecessarily cut a large hole in the neck of plaintiff’s bladder and otherwise carelessly and negligently cut and mutilated the body of the plaintiff so that plaintiff’s urine ever since has passed from him through his anus and always will thus pass to'plaintiff’s great injury, discomfort and suffering; that said Dr. Joyce so carelessly and negligently treated the plaintiff that after the first operation upon the plaintiff, neither the said Dr. Joyce nor any other doctor or physician or surgeon of said hospital visited or waited upon plaintiff for a period of 5 days; that afterwards said Dr.Joyce neglected to see the plaintiff for as much as a period of 2 weeks at a time, from which neglect and mistreatment the plaintiff suffered great pain and agony and has become completely and permanently disabled and will always suffer great pain and inconvenience; that during all the time plaintiff was in said hospital, he was neglected by the nurses and treated by them with insult and contempt, thus intensifying his pain and suffering.
6. And plaintiff alleges that after being discharged from said hospital by the defendant as aforesaid, he employed other physicians at great trouble and expense in the hope of finding relief or alleviation of the condition in which he was left by the negligence of the defendant and of the said Dr. Joyce as aforesaid.
*400 7. That plaintiff at the time of the happening to him of said accident in. the month of February, 1906, was of the age of 36 years, and in robust and vigorous health, and had always been well and strong, and of good constitution; that said hospital was not a charitable institution and was not conducted by defendant as a public or private charity or for charitable or eleemosynary purposes in whole or in part, but was managed and conducted by defendant solely with funds contributed by its employees, including the plaintiff, and that plaintiff had always paid to the defendant his dues from month to month during the whole of the time he worked for defendant and was never in default therein and in all respects kept and fulfilled said contract of employment upon his part; that the control and management of said hospital and the choice and selection and employment of all the nurses and physicians and surgeons therein and connected therewith belonged wholly to and was exercised wholly by the defendant, and that the plaintiff never had any voice or part in the control or management of said hospital or in the choice or selection or employment of said nurses or any of them or of the said physicians or surgeons or any of them or of the said Dr. Joyce; that the treatment of the plaintiff undertaken by the defendant at said hospital as aforesaid was not gratuitous but for the consideration aforesaid; that the defendant never informed the plaintiff that it was proposing to extend to him a charity or gratuity when it entered upon his treatment at said hospital and never returned to him his hospital dues collected from him by the defendant during the course of his past employment.
&. That the earning capacity of the plaintiff'-hrthcmontlr of February, 1906, and prior thereto was at least $500.00 per year; that his expectation of life at that time was 31 67-100 years; that since said accident he has been unable to work at his trade or to follw any other remunerative occupation and is supported by the manual labor and industry of his wife and will never be able to pursue any gainful occupation or make his own living and that the injury which*401 lie sustained by said accident was readily and easily curable at the hands of a skilful physician of reasonable prudence and competency.
9. That by reason of the failure and neglect of the defendant to fulfill and carry out its. contract as aforesaid with the plaintiff and by reason of the negligence and carelessness, unskilfulness and incompetency of defendant’s physicians and surgeons in its said hospital, and lack of training and incapacity of its said nurses, the plaintiff has been damaged in the sum of $1,999.00.
Wherefore plaintiff prays judgment against the defendant in the sum of One Thousand Nine Hundred and Ninety-nine Dollars and costs of suit.”
The defendant demurred to the petition upon the ground that it failed to state facts sufficient to constitute a cause of action. Upon argument and submission to the court the demurrer was sustained, to which ruling an exception was reserved and the plaintiff declining to plead further, judgment was rendered in favor of the defendant, and the plaintiff brings the case here on error.
The sole question here presented is as to the sufficiency of the facts pleaded in the petition to state a cause of action against the defendant and in favor of the plaintiff. It will be observed that in the latter part of paragraph 3 of the petition the plaintiff alleges “that the defendant did not furnish the plaintiff with proper hospital accommodations in said hospital and did not treat him properly therein and did not furnish him the services of skilful or competent physicians or trained or capable nurses, and did not use or exercise due or reasonable care in the selection of such nurses and physicians and surgeons as were furnished to plaintiff.” With reference to cases of this character it may be said that in general it has been held that a railroad company is not liable for the negligence of its surgeons if it has used reasonable care in their selection. We think this is the correct rule. (Powers v. Massachusetts Homeopathic Hospital, 109 Fed. (C. C. A. First Cir.) 294, 47 C. C. A. 122, 65 L. R. A.
It was necessary that the petition should by appropriate allegation show that the absence of due and reasonable care in selecting a skilful and competent physician and surgeon was a proximate cause of the injury received at the hands of the surgeon. Among other allegations it is alleged in paragraph 5 of the petition that the physician furnished did, in the performance of the operation, “carelessly and negligently, and unnecessarily cut a large hole in the neck of plaintiff’s bladder.” The words “carelessly” and “negligently” as here used are not synonomous with the word “unnecessarily.” The latter negatives the necessity of cutting the bladder, in the performance of the operation while the former refers to the manner of doing and not to the necessity of doing. The necessity of cutting the bladder in the •performance of the operation rested in the judgment of the surgeon, and called into activity his power to perceive and perform (Webster’s New International Dictionary) which was the measure of his skill. If, therefore, he performed an act unnecessary to'the operation with'or without negligence
For the error of the lower court in sustaining the demurrer to the petition the judgment will be reversed and the case-remanded for further proceedings.
Reversed.