Southern Pacific Company v. Hendricks , 85 Ariz. 373 ( 1959 )

UDALL, Justice.

This is an appeal by defendant, Southern Pacific Company, a corporation, from a judgment, based upon a jury verdict, in favor of plaintiff-appellee, Clotilda A. Hendricks, administratrix of the estate of her son, Alexander Joseph Augustin, deceased, for his alleged wrongful death by sunstroke due to the claimed negligence of defendant. We shall hereafter refer to the parties by name or as plaintiff’s decedent, and defendant.

The action was brought under the provisions of the Federal Employers’ Liability Act, Title 45 U.S.C.A. § 51 et seq. The statute expressly imposes liability upon the employer to pay damages for injury or death due “in whole or in part * * * to its negligence.” Inasmuch as this section does not define negligence, we are not unmindful of the holdings of the Supreme Court of the United States, that the question as to what constitutes negligence is controlled by common-law principles and that federal decisional law formulating and applying the concept governs.

The complaint in the instant case alleged, inter alia,

“That while engaged in said duties as a track maintenance laborer, plaintiff’s decedent became violently sick due to the extreme heat and the conditions under which he was working; and that by reason thereof said decedent was powerless to help and care for himself; that the physical condition of the decedent arose in the presence of and was made known to * * foreman of the crew of which the deceased was a member; that the defendant corporation’s officer, agent and servant knew or should have known full well the condition of the decedent and said decedent’s need for assistance and medical attention.

“That it was the duty of the defend- ; ant under the circumstances heretofore alleged to give and provide the decedent immediate attention, first aid and medical care; that the defendant negligently failed to provide said decedent with immediate assistance, first aid and medical care; * * * that as a proximate result of the defendant’s failure to exercise ordinary care in the emergency, and its breach of duty as provided by law and as above set forth, the death of the decedent occurred.” (Emphasis supplied.)

Defendant’s answer, while admitting that decedent became ill while at work, makes a general denial as to the above averments, and in addition alleged that decedent’s illness and death were solely or partially caused by his own negligence.

At the close of plaintiff’s case, and again at the close of all the evidence, the defendant moved for a directed verdict upon the ground that there was no evidence, or inferences properly deducible therefrom, from which the jury could properly find that defendant breached any duty which it owed decedent, or which in whole or in part proximately caused his death. Both motions for an instructed verdict were denied and the case was submitted to the jury which returned a verdict for plaintiff in the sum of $13,500. This appeal followed. While there are several assignments of error, some of which complain of the giving of certain instructions as well as the refusal of the court to grant judgment n. o. v. and/or a motion for new trial, the vital issue, which we believe is determinative of this appeal, is the sufficiency of the evidence for submission to the jury.

To solve the problem presented we must first necessarily determine what duty a railroad company owes its employees with respect to furnishing them with medical aid and assistance. The governing principles of law are not in dispute. It is the general rule that in the absence of either a contractual or statutory obligation an employer is not legally bound to render medical assistance or aid to an employee who, while on the job, becomes ill or suffers injury without the employer’s fault. Exceptions to the general rule are: (1) when an employee, to the employer’s knowledge, becomes so seriously ill while at work as to render him helpless to obtain medical aid or assistance for himself, the employer must exercise reasonable care to procure medical aid and assistance for such helpless employee; and (2) when an employer actually undertakes to furnish aid or assistance to an ill employee, he must exercise reasonable care in rendering such aid and assistance. See, 35 Am.Jur., Master and Servant, sections 108 and 109; Szabo v. Pennsylvania R. Co., 132 N.J.L. 331, 40 A.2d 562, 563; Carey v. Davis, 190 Iowa 720, 180 N.W. 889, 12 A.L.R. 904. Furthermore, relative to the exceptions, supra, the duty arises out of strict necessity and urgent exigency. It arises with the emergency and expires with it. Szabo v. Pennsylvania R. Co., supra.

This rule and its exceptions are applicable to actions brought under the provisions of the F.E.L.A. statute. See, Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368; Lanni v. Wyer, 2 Cir., 219 F.2d 701.

Admittedly there is neither a contractual nor statutory obligation to be considered in the present case. The case was tried to the jury on the theory that the first exception to the general rule, supra, applied, i. e., that if while at work an employee becomes so seriously ill as to render him helpless, the employer, having knowledge of such condition, must exercise reasonable care to procure medical aid or assistance for' him.

In relating the facts we shall, where-ever there is a conflict, necessarily state them in a light most favorable to a sustaining of the judgment. The transcript shows that in the month of July 1955 defendant was re-laying some of the railroad tracks in and near its Gila Bend yards. An extra section gang, with Neville Jantz as general foreman, was doing the work. On July 26, 1955, the plaintiff’s decedent, Alexander Joseph Augustin, and his friend, Raymond Thomas Valentine (both of whom were Indian boys residing at Ajo, a town 42 miles distant), came to Gila Bend and applied for and were given jobs as section hands with the Southern Pacific. Augustin was a single man, 21 years of age; a high school graduate and with some prior experience as a railroad worker. In connection with a written application for employment he gave his past medical history which indicated he was then in good health and had never had any serious illness. Both hoys went to work for defendant the next morning with the extra gang under Foreman Jantz, working from 7:00 a. m. to 3 p. m. No untoward incident occurred that day. 'They were furnished “quarters” in outfit •cars stationed at the west end of the Gila Bend railroad yards. The next morning Augustin reported for work at 7:00 a. m. (the men walking from their quarters to the work, which took approximately twenty minutes). This day the two Indian boys were separated, working under different ■subforemen. The crew Augustin was with were engaged in pulling the spikes and removing “tie-plates” from the tracks and ■throwing the tie-plates — weighing approximately 8 pounds each — off to one side of the •railway right of way. A co-laborer, Alexander Trujillo, testifying for the plaintiff, ■stated that the latter, against his advice, •drank lots of water and refused salt tablets •carried by the water boy. During the •course of the morning (about 10 a. m.), Augustin became sick at his stomach and ■vomited. A subforeman named Flores told Tiim to sit down over in the shade of one of the box cars, which he did, staying there for some 20 or 30 minutes; he then came back to work and worked up until lunch time. Plaintiff’s witnesses, Trujillo and Valentine, were with Augustin at lunch time and both testified that he then looked all right to them, and after lunch he returned to work with the other men. At about 2:30 p. m. Augustin complained to Trujillo that he did not feel well. He then approached an assistant foreman by the name of Frank and we quote from the testimony of Trujillo as to what transpired:

“Q. And he asked Frank if he could take off and go back to camp and Frank said, ‘Well, you have to ask the boss.’ A. Yes.

“Q. So then he walked on down toward the depot and the boss was right down there near the depot, that was Mr. Jantz, wasn’t it? A. Yes.

“Q. He ask Mr. Jantz he said, ‘I’m not feeling so good can I go back to camp?’ A. Yes.

“Q. And Mr. Jantz said, ‘All right if you’re not feeling good go on back to camp.’ A. That’s right.

“Q. You told Jantz that you (Trujillo) were going back to camp too?

A. That’s right.”

Trujillo further testified that at the time Augustin went over to Jantz he was “a little shaky and pale”; however, this was denied by Jantz.

The conversation between Jantz and Augustin took place just a little east of the depot at Gila Bend. The foreman told the latter to “go tell the timekeeper, * * * and he could take off.” It appears that the timekeeper was then at the depot. Thereafter the two men (Augustin and Trujillo) left together, walking toward their quarters. It appears that near there a train was on one of the tracks and Trujillo went on the south side of it and Augustin continued on the north side, and that was the last that he was seen alive by anyone.

After the day’s work was done and the section crew were returning to their quarters the body of Augustin was discovered by them at about 4 p. m. It was lying off the embankment in the sun, just to the north of the railroad tracks, which point was within about 300 yards of their sleeping cars. The highway patrolman estimated the distance from the depot to decedent’s body as being about one-half mile. Augustin was taken to the office of Dr. Bogel J. Jeffrey (which is sometimes referred to in the testimony as the hospital), where the doctor pronounced him dead and stated that the body was dry and recorded a temperature reading above 108 degrees, which was as high as his thermometer registered. The doctor diagnosed the cause of death as “Thermic fever” (commonly known as sunstroke) .

It is well known that Gila Bend is one of the hottest places in the United States and the evidence shows the thermometer registered as high as 105 degrees Fahrenheit on the day in question. It being the rainy season period, it was sultry and the humidity higher than normal though no witness gave figures thereon. While the resident doctor was not unfamiliar with sunstroke cases— which usually occurred to those unacclimated — there is no evidence in the record that any such cases had theretofore arisen with any of defendant’s employees.

It might be well to note that both of the medical witnesses made it clear that there is a vast difference between “heat exhaustion” and “sunstroke”, though both are caused by the same thing, i. e., “excessive environmental heat.” We quote from Dr. Jeffrey:

“Q. Doctor, what is the difference between — if there is a difference between heat exhaustion and sunstroke?

“A. Well, other than the fact that probably the causes that bring it about are the same — that is, as near as they ever get together, because as far as I am concerned they are absolutely in reverse of one another. There are two conditions.

“Q. I wonder if you can elaborate a little bit more, Doctor ?

“A. Well, let’s say that the temperature of the case of sunstroke was 108°; whereas, your case of heat exhaustion usually is opposite. They are sub-normal, below normal, and whereas in your case of sunstroke the patient is very extremely dry and extremely hot, why your case of heat exhaustion the patient is very wet and very sweaty.”

From the foregoing facts can it be fairly charged the foreman knew, or should have known, that Augustin was (as alleged in the complaint) violently sick and powerless to help and care for himself? Is there in this record any evidence of defendant’s negligence which should have been submitted to the jury, or did it present a question of law for the court to decide? The recognized test to apply was laid down in the sunstroke case of Gypsy Oil Co. v. McNair, 179 Okl. 182, 64 P.2d 885, 892, viz.:

“The question of whether or not an admitted or clearly established state of facts does, or does not, show that a sick or injured employee is in such a serious condition as to cast upon the employer the duty of furnishing him prompt medical treatment, is also one of law for the court’s determination. To bring a case within the rule casting such duty upon the master, it must be shown, or there must be evidence fairly tending to show, that the stricken employee will suffer loss of life or serious bodily harm unless such aid is provided and that the employer or his agent actually had, or by the exercise of due care would have had, notice thereof.” (Emphasis supplied.)

This governing principle of law was quoted with approval in the recent sunstroke case of Rival v. Atchison, Topeka & Santa Fe Ry. Co., 62 N.M. 159, 306 P.2d 648, 64 A.L.R.2d 1098, so strongly relied upon by the plaintiff. Incidentally, the facts in that case were entirely dissimilar than in the instant case, as there the afflicted man was flailing his arms and legs, having lost all of his body motivation and was obviously in dire need of medical attention which was not promptly furnished to him by the defendant railroad company. The case was correctly decided. For a similar situation, cf. Szabo v. Pennsylvania R. Co., supra.

In analyzing the facts in the instant case, they must be considered in the light as they would have appeared to an ordinarily prudent man standing then in the shoes of the foreman. Hindsight should play no part in it and it must also be recognized that the foreman was not a doctor but only a layman. The evidence does not show that Augustin at the time of his becoming ill was incapable of caring for himself or incapable of requesting assistance. He did not fall to the ground or become unable to walk or talk. The record shows decedent knew where the hospital was and his route back to quarters took him within close proximity thereto. Doctor Jeffrey testified that the first symptoms one would expect to observe in a person who was in the process of having a heat stroke (this being a paralysis of the heat centers of the body) would be to faint or lose consciousness or inability to maintain one’s sense of equilibrium, as well as mental confusion. Co-laborer Trujillo, the last man to see decedent alive, testified that Augustin was able to stand erect and walk all right, with no staggering or dizziness apparent; that he could and did talk all right and furthermore did not ask anyone for help; that he was sweating profusely (a symptom of heat exhaustion, not sunstroke). Also, these questions and answers appear:

“Q. * * * At any time from the time you and Augustin left Jantz, until the time that you split up, one on either side of this train, did he do anything at all that made you think that you ought to take the man to the hospital ?

“A. No.

“Q. Did he do anything at all that made you think that he was real sick?

“A. No.”

We believe it can be said, as a matter of law, that from this record the foreman did what an ordinarily prudent man would have under the circumstances and did not fail to do anything which the same ordinarily prudent person would have done under such circumstances, hence there was no breach of duty. It is, therefore, our considered opinion the trial court erred in submitting the case to the jury as there was no evidence of actionable negligence shown, or any that could be inferred on the part of defendant’s agent. See, Bowers v. J. D. Halstead Lumber Co., 28 Ariz. 122, 236 P. 124.

Judgment reversed with directions to dismiss plaintiff’s complaint.

M. T. PHELPS, C. J., and BERNSTEIN, J., concur.