Rehearing Denied July 7, 1959.
[85 Ariz. 374] Boyle, Bilby, Thompson & Shoenhair, Tucson, for appellant.
Marquez & Wine and Lowell E. Rothschild, Tucson, for appellee.
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.
[85 Ariz. 375] 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 maintenances 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 defendant 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. [85 Ariz. 376] 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 either 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, whereever 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 [85 Ariz. 377] 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 boys 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 him 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 ...