A. & N. R. R. v. Jones ( 1879 )

Lake, J.

That the defendant in error performed the service for which he sued, and that it was worth at least the amount found by the j.ury, were abundantly proven, although, as to the latter fact, there was some conflict in the evidence.

. The stipulation of facts entered into by the parties brought the disputed questions within a very narrow compass. It was in these words: “That the defendant, after the injury of said Russell, undertook and assumed the expense of obtaining for him all necessary medical attendance. That the plaintiff rendered professional service to said Russell, with the knowledge and acquiescence of S. B. Galey, its agent, authorized to employ medical assistance to Russell, and who knew that service was so rendered by jflaintiff.”

Thus it was established, indisputably — First, That immediately after Russell’s injury the plaintiff in error “ undertook and assumed” all the necessary medical aid that his case might require. Second, That the defendant in error rendered such service to Russell “with the knowledge and acquiescence” of the agent of the railroad company having the matter in charge. After -this, to warrant a recovery there only remained to be proven the reasonableness of the service bestowed, and its value.

That the service was necessary, under the circumstances, we think was clearly established, not only by the “acquiescence” of the agent of the company, but also by abundant oral testimony, especially that of Dr. Eadmore, the physician chiefly intrusted with the management of the case by the company, who swore that he requested Dr. Jones to assist him, and that he considered his service “necessary in consequence of the responsibility attached to the case.” Also, that Mr. G-aley, the agent of the company, told him “ to have everything done that could be for the patient,” and to “ use every effort that could be made to restore him.”

Without taking time to refer to other corroborative testimony found in the record, we will merely add, upon this branch of the case, that there is ample evidence to support the verdict, and the district court was clearly right in so holding. Where there is a substantial support to the verdict by the evidence it will be upheld.

It is also assigned for error that the distinct court refused to' give three several instructions asked for by the plaintiff in error. By the first of these instructions, so refused, the court was requested to instruct the jury that the fact that “the agent of the defendant, who was authorized to employ medical and surgical •aid for Eussell on behalf of the defendant, was present at the sick room of Eussell, and knew of professional services being rendered to Eussell by the plaintiff, is no evidence to show that the plaintiff was employed at the instance and request of the defendant to render the service he claims to have rendered.” Such being a part of the instruction requested, we think the whole was rightly refused, although the residue expressed a correct legal proposition applicable to the evidence. "While the testimony referred to in the above quotation did not of itself prove a direct employment, it was strongly corroborative of other evidence in the case which did tend to prove that there was an understanding between the parties that the service was necessary and that the company would pay for it. To have said, therefore, that the circumstance referred to “ was no evidence” would have withdrawn from the jury valuable testimony, to which the defendant in error was fairly entitled. The other two instructions refused, although couched in different language, were of precisely the same import, and were properly rejected.

None of the errors complained of were well taken, and the judgment is affirmed.

Judgment affirmed.