Columbia & Cincinnati Street Railway Co. v. Wiseman

Cox, J. As to the question of law in this case, a superintendent of a railroad, unless invested with special authority for that purpose, has no power to employ a physician and bind the company for his services, to attend to a passenger who is in [248] jured on the road. This has been settled in. numerous cases. (30 Law Reports; 3 Ex. Rep., 268; 2 Duer, N. Y., 341; 28 Mich., 293; 42 Conn., 586; 80 Ky. Rep., 167; 75 Mo. Rep., 492; 67 Mo., 122; 54 Mo., 177.) The authority of a superintendent to employ a physician may, however, be implied from all the facts and circumstances of the case, .but is not necessarily inferred from the fact that he bears'the title of superintendent. It is a question of fact for the jury upon the whole case. It is contended, however, upon the part of the plaintiff, that, being a superintendent of the road, having the management of it, he had such authority, and could so bind the company,; and we are cited to a number of cases, which, it is claimed, support that proposition. (2 Law Reports, 2 Ex., 228; 47 Ill., 188; 28 Mich., 300; 50 Ill., 26; 18 Kansas, 458; 19 Kansas; 24 Kansas, 228; 82 Ill., 73.) But all these cases go to the point that where the injured person is an employe of the company, the superintendent has the right to bind the company by employing a physician or surgeon to attend him. They draw a distinction between the passenger and the employe, on the ground that the employe is necessary in the management of the affairs of the company, and that the company, for its own protection, and for the protection of the employes, owes a duty to them which it does not owe to the passenger. A number of exceptions were taken by the defendant to the charge of the court as given, and to the refusal of the court to give others as asked. Upon an examination of the charge of the court, we think it can fairly be inferred that he left it to the jury to consider upon all the testimony in the case, whether the superintendent had the authority to bind the company, and that it was a question of fact for them to determine. And we think that that was a proper charge. The charge was lengthy, and some parts of it were, perhaps, confusing to the jury; but taken as a whole, the propositions laid before them were so stated as that they could understand them. The testimony, however, clearly showed, we think, that the superintendent had no such authority ; and it was not made to appear, by a preponderance of the testimony, even that he [249] had employed the plaintiff to perform the services for which he sought to recover. Wallace Burch, for plaintiff in error. Campbell, Bates & Bettman, for defendant in error. - We think, therefore, that the judgment was against the weight of the evidence, and that the court erred in not granting a new trial. The judgment will be reversed and the cause remanded to the court of common pleas for further proceedings.