ANDERSON v. ATCHISON RY CO (1946)

From a judgment in favor of defendant predicated upon the sustaing of its objection to the introduction of any evidence on the ground that the complaint failed to state a cause of action in a suit to recover damages for the death of plaintiff's intestate, plaintiff appeals.

The gist of the complaint as amended^* is that the decedent, plaintiff's intestate, who was a conductor upon a train of the defendant, fell from the train and that at some subsequent time, unstated, his absence was noted and no search was made for him for a further period of time and that by reason of the delay in searching for and discovering him he was exposed to inclement weather and as a result died.

Plaintiff concedes that this is the sole question presented for our determination:

Is a railroad that has notice of the absence of an employee from a moving train under a duty to use ordinary care to ascertain his whereabouts and render aid?

This question must be answered in the negative. It is the rule, supported by well considered decisions of other jurisdictions, that there is no legal liability upon the part of an employer for failure to discover the whereabouts of a missing employee when the employer has no knowledge that the employee is injured or that there has been an accident. (Haggard v. Lowden, 156 Kan. 522, 134 P.2d 676, 680; Batton v. Atlantic Coast Line R. Co., 210 N.C. 756, 188 S.E. 383, 388.)

In each of the case cited the precise issue presented in the present case was raised and decided in conformity with the rule above announced.

Haggard v. Lowden, 156 Kan. 522, 134 P.2d 676, reached the appellant court on a judgment for defendant entered after the sustaining of a demurrer to plaintiff's complaint. To that extent the Haggard case and the case at bar are identical, for here the appeal is from a judgment entered after the sustaining of an objection to the admission of any evidence on the ground that the complaint failed to state a cause of action. The Haggard case was also by an administratrix to recover damages for the death of her intestate upon the ground that the defendant through its agents neglected for several hours to make a search for the injured employee after his absence from the train was known, and also upon the claim that through this delay he was left unaided and died. Prior to his injuries, Kansas had adopted the rule of liability on the part of a master to furnish aid in an emergency to an injured or helpless employee when the master has knowledge thereof. The facts alleged were as follows:

The deceased Haggard was a conductor in charge of a certain freight train. At the railroad yards at Topeka, the entire train crew except Haggard went to the railroad eating house for a meal. Shortly thereafter the train crew returned and negligently and without authority proceeded with the train, minus Haggard, the conductor, in violation of certain rules of the company. Haggard had been assaulted by some unknown person and, when the train left, was lying helpless on the railroad right-of-way for several hours unable to aid himself or to secure medical attention. The train crew continued the run without due regard for Haggard's welfare and without knowing where he was or what had happened to him, or without making any attempt to locate him and determine his condition. The train crew failed to see Haggard at his accustomed place upon the train and did not exercise the ordinary care of a prudent person in determining his whereabouts. His loss of blood, exposure and lack of medical care directly and proximately caused his death, which would have been averted if the servants and employees of defendant had promptly and seasonably located him and rendered aid, or had immediately reported his absence so that he could have been promptly treated. The direct and proximate cause of his death was due to these acts of omission and commission by defendants and their servants. A demurrer to the petition was sustained and plaintiff appealed. The court says 134 P.2d at page 678 et seq.:

‘It is made clear by appellant's brief that she does not claim defendants or any of their employees caused or contributed to Haggard's injuries. She does contend that the injuries, in and of themselves, were not sufficient to have produced his death, but that such a result followed from his being left unaided and exposed for about two hours, due to the allegedly negligent failure of the defendants and their servants and employees to discover him and render him aid. The questions presented by the appellant may be summarized as follows:

‘Where a conductor in interstate commerce is seriously injured from an unknown cause, while performing his duties at a stopping point, and under circumstances where he could have been found and his death prevented by the exercise of care by other members of the train crew, does their failure to so discover him constitute actionable negligence under the federal employers' liability act; and, under such circumstances, where the other trainmen, in alleged violation of company rules, started the train without making any effort to locate the injured conductor, and without discovering his predicament or reporting his absence, thereby delaying securing of medical care until too late to prevent his death which would not have otherwise occurred, does the violation of the rules constitute actionable negligence under the above act?’

The court refers to the fact that there can be no liability under the federal liability act without neglience, and that such negligence must be the cause of the injuries or death. The court says, 134 P.2d at page 679.:

‘It is clear from the petition, and as is noted above it is conceded by the appellant, that the original injury sustained by Haggard was not occasioned by nor due to any negligence of the appellee. The substance of appellant's contentions is that appellees owed a duty to render aid to an injured employee, regardless of the cause of his injury; that the violation by their employees of company rules was the legal cause of Haggard's injuries not being sooner discovered so that aid could have been rendered, and that it was not necessary to liability that appellees have actual knowledge of Haggard's injuries at the time they were received by him.

‘Without exposition, we think it may be said the appellees would be liable, both under the law and under the company's rules, for failure to render aid, adequate under the circumstances, to an employee injured in the course of his employment, from the time they had actual knowledge of the injuries. We need not pursue this rule further for under the allegations of the petition it cannot be said the appellees had such knowledge. On the contrary the allegations are that after Haggard received his injuries, through appellees' negligence he was not found and was permitted to be unaided and without attention, his death resulting from his exposure and lack of medical care. * * * Appellant contends that in order for the company to be liable for neglience, it was not necessary the train crew have actual knowledge that Haggard had been injured, and that the appellees' contention that duty to extend care and aid did not arise until their employees knew of the injuries is too narrow, and that if the train crew knew or should have known that Haggard was in a position of danger, there was negligence in failure to assist him. In support of her contention, appellant does not cite any authority specifically in point, but she directs our attention largely to decisions dealing with injuries sustained in switching cases. The only decision of the court cited is McMullen v. Atchison, T. & S. F. Railway Co., 107 Kan. 274, 191 P. 306, and it is clearly distinguishable on the facts. Appellant also quotes excerpts from Pullman Co. v. Montimore, 5 Cir., 17 F.2d 2, but from an examination of that case it appears a porter who claimed damages from exposure, was left to guard a car placed on a siding by the company, and that the company was aware of the circumstances which led to the exposure. None of the cases cited support the contention that under circumstances similar to those here involved, notice of the injury is not necessary.

‘Appellees direct our attention to many decisions, some rather closely in point, and some from which an analogy may be drawn that, under the circumstances, actual knowledge is required. Among these decisions is Batton v. Atlantic Coast Line R. Co., 210 N.C. 756, 188 S.E. 383, which involved the sufficiency of a petition to state a cause of action.’

The court then notes several authorities including Batton v. Atlantic Coast Line R. Co., 210 N.C. 756, 188 S.E. 383, which decides generally that actuall knowledge by the employer is necessary before there can be any legal duty resting upon an employer to seek for or render aid to an injured employee, and says 134 P.2d at page 681:

‘We are of opinion that, under the circumstances of this case, the company was not negligent in not extending aid to its injured employee, when it was not aware of such injuries.’

We can attention to the great similarity of the allegations in the complaint there and in the complaint in the case at bar. The allegations there were even more favorable to the plaintiff's contention than here; there it was alleged that rules of the company were violated (whereas there are no such allegations here) and that Haggard was a ‘conductor being in charge of the train.’ There is no such allegation here. While it appears decedent was a conductor, there was another employee who was ‘the regular conductor.’

The other case involving the precise question at issue here is that of Batton v. Atlantic Coast Line R. Co., 210 N.C. 756, 188 S.E. 383. That case also was an appeal from a judgment rendered after sustaining a demurrer to a second count of the complaint complaining of delay in searching for and of failing to render aid to plaintiff, an injured servant. Like the Haggard case it also arose in a state where a legal duty is held to exist requiring an employer to render medical services in an emergency where the employer knows of his servant's injuries and of his helpless condition. The complaint did not allege any knowledge in the employer of the accident or injuries. As will be seen from the following statement of the facts they went much farther than in the case at bar: It was alleged that the plaintiff, a flagman on a passenger train, went to the rear of the train to protect it while it was stopped at a station. The night was dark and he stepped off the end of a platform and fell a distance of sixty feet where he remained until the next morning suffering from pain and exposure; that the defendant was negligent in not making search for him and in failing to render prompt medical attention. It was his duty, as flagman, to give a signal to the engineer at every stop, and without such signal the engineer started the train from Weldon, where the accident occurred, in violation of instructions and custom; that even after the train left the station his absence should have been discovered by other members of the train crew as they were required, and their instructions were, to get his signals at each stop, and in the absence of such signals they should have known he was missing and should have taken prompt steps to discover his whereabouts; that by reason of the negligent delay he was not found for over five hours whereby his injuries were aggravated. The judgment of the trial court in dismissing the second cause of action in the complaint (negligence in failing to discover the plaintiff and render him aid) was affirmed. The court said, 134 P.2d at page 680:

‘In the instant case, it is not alleged in the complaint that any of the employees of the defendant was present at the time the plaintiff fell from the platform at Weldon, or that the defendant had actual knowledge of the condition of the plaintiff as the result of his fall. Nor are facts alleged in the complaint from which it can be held that the defendant had constructive knowledge of such condition. At most, the defendant knew when and after its train left Weldon that the plaintiff, while engaged in the performance of his duties as a flagman on said train had disappeared from the platform and had not returned to the train. This knowledge did not impose upon the defendant or any of its employees the duty to make an investigation to discover the cause of plaintiff's disappearance from the platform or failure to return to the train. The plaintiff may have disappeared from the platform and failed to return to the train, while it was standing at the station at Weldon, voluntarily. No facts are alleged in the complaint which imposed upon the defendant or its employees the duty to presume to the contrary.’

Examining the allegations of appellant's complaint in the instant case in the light of the foregoing authorities, it appears at once that the allegations of the complaints in the cited cases are more strongly in favor of the plaintiff than are those in the case at bar. In each of them it was held that the complaint did not state a cause of action for the reason that knowledge of the injuries and of the helpless condition of the injured man is a requisite under any line of decisions before liability can be visited upon the employer for failing to render aid or to make a search for him.

Since there is no allegation in the present complaint that the defendant or its servants ever had knowledge of the accident and injuries or of decedent's helpless condition until he was finally discovered at some later time, the complaint was fatally defective in that it failed to contain a material allegation and thus did not state a cause of action. Therefore the trial judge properly sustained defendant's objection to the introduction of any evidence.

For the foregoing reasons the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  Omitting the title of the court and cause, the material allegations of the complaint are as follows:‘V. That on or about the 24th day of November, 1942, at or about the hour of 5:30 o'clock A. M. thereof, said L. C. Bristow was employed by defendant as a conductor working on defendant's passenger train No. 1 then and there westbound from Amarillo, Texas, to Belen, New Mexico at a point approximately opposite defendant's station at Gallaher, Curry County, New Mexico.‘VI. That at said time and place in the regular course and scope of his employment by defendant, as aforesaid, said L. C. Bristow was required to engage in and he was engaged in checking a certain train order signal at said station and while performing said duty in the usual and ordinary manner, it was necessary for him to open the rear vestibule door of said train; that at said time and place defendant, acting by and through its agents, servants and employees, other than decedent, carelessly and negligently maintained said rear vestibule door and the fastener for said door in a defective and unsafe condition and as a direct and proximate result of such carelessness and negligence and while decedent was in the act of observing said order signal, said door was caused to suddenly release from its fastener and swing violently against decedent thereby causing said decedent to be thrown from said train and to sustain the injuries which resulted in his death on the 27th day of November, 1942, at or about the hour of 10:35 o'clock A. M. thereof.‘VII. That said accident and the injuries to said decedent, L. C. Bristow, as hereinbefore alleged, occurred on November 24th, 1942, at or about the hour of 5:30 o'clock A. M. thereof, and said L. C. Bristow died as a direct and proximate result of said injuries on November 27th, 1942, at or about the hour of 10:35 o'clock A. M. thereof, and between the time of his accident and the time of his death, said L. C. Bristow was conscious and suffered excruciating pain and mental anguish, all to plaintiff's damage in the sum of Ten Thousand ($10,000.00) Dollars.‘VIII. That at the time of his death, said L. C. Bristow left surviving him as his heirs at law, his widow Virla E. Bristow and his son, Dan Bristow, age fourteen years; and that said Virla E. Bristow and Dan Bristow were entirely dependent upon said decedent for their maintenance and support.’

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.