Terre Haute and Indianapolis Railroad Company v. McMurray. dentally injured on the roads." It may be that this statement is true in ordinary cases, but when we add the element of immediate and pressing necessity, a new and potent factor is introduced into the case. A brief opinion was rendered in Brown v. Missouri, etc., Ry. Co., 67 Mo. 122, declaring that the superintendent of the company could not bind the company for "a small bill of drugs furnished a woman who had been hurt by the locomotive or cars of the defendant." It may be said of the last cited case that it presented no feature of emergency requiring prompt action, and for aught that appears in the meagre opinion of a very few lines, there may have been no necessity for action. But it is further to be said of it, that if it is to be deemed as going to the extent of denying the right of one of the principal officers to contract for medicine in a case of urgency, it finds no support from any adjudged case. The case of Mayberry v. Chicago, etc., R. Co., 75 Mo. 492, is not in point, for there a physician employed to render medical aid, and employed for no other purpose, undertook to contract for boarding for an injured man. The learned counsel for appellant says, in his argument: "In several of these cases the court takes occasion to say that humanity, if not strict justice, requires a railroad company to care for an employee who is injured without fault on his part in endeavoring to promote the interests of the company. Whilst this may be true, I think humanity and strict justice, too, would at least permit the company to adopt the proper means for exercising the required care and of determining the cases wherein it ought to be exercised." It seems to us that while the concession of the counsel is required by principle and authority, his answer is far from satisfactory. Can a man be permitted to die while waiting for the company to determine when and how it shall do what humanity and strict justice require? Must there not be some representative of the company present in cases of dire necessity to act for it? The position of counsel will meet ordinary cases, but it falls far short of meeting cases where there is no time for deliberation, and where humanity and justice demand instant action. From whatever point of view we look at the subject we shall find that the highest principles of justice demand that a subordinate agent may, in the company's behalf, call surgical aid, when the emergencies of the occasion demand it, and when he is the sole agent of the company in whose power it. is to summon assistance to the injured and suffering servant. Terre Haute and Indianapolis Railroad Company v. McMurray. Humanity and justice are for the most part inseparable, for all law is for the ultimate benefit of man. The highest purpose the law can accomplish is the good of society and its members, and it is seldom, indeed, that the law refuses what humanity suggests. Before this broad principle bare pecuniary considerations become as things of little weight. There may be cases in which a denial of the right of the conductor to summon medical assistance to one of his train-men would result in suffering and death; while on the other hand, the assertion of the right can, at most, never do more than entail upon the corporation pecuniary loss. It may not do even that, for prompt medical assistance may, in many cases, lessen the loss to the company by preventing loss of life or limb. The authority of a conductor of a train in its general scope is known to all intelligent men, and the court that professes itself ignorant of this matter of general notoriety avows a lack of knowledge that no citizen who has the slighest acquaintance with railroad affairs would be willing to confess. It is true that the exact limits of his authority cannot be inferred from evidence that he is the conductor in charge of the train, but the general duty and authority may be. This general authority gives him control of the train-men and of the train, and devolves upon him the duty of using reasonable care and diligence for the safety of his subordinates. The authority of the conductor may be inferred, as held in Columbus, etc., Ry. Co. v. Powell, 40 Ind. 37, from his acting as such in the control of the train, but this inference only embraces the ordinary duties of such an agent. Many cases declare that the conductor, in the management of the train and matters connected with it, represents the company. It is true that the agency is a subordinate one, confined to the subject-matter of the safety of the train and its crew, and the due management of matters connected with it, but although the conductor is a subordinate agent he yet has broad authority over the special subject committed to his charge. It was said in Jeffersonville Ass'n v. Fisher, 7 Ind. 699, that "It is not the name given to the agent, but the acts which he is authorized to do, which must determine whether they are valid or not, when done." In another case it was said: "The authority of an agent being limited to a particular business does not make it special; it may be as general in regard to that, as though its range were unlimited." Cruzan v. Smith, 41 Ind. 288. This subject was discussed in Toledo, etc., Ry. Co. v. Owen, 43 Ind. 405, where it was Terre Haute and Indianapolis Railroad Company v. McMurray. said: "A general agent is one authorized to transact all his principal's business, or all of his principal's business of some particular kind. A special agent is one who is authorized to do one or more special things, and is usually confined to one or more particular transactions, such as the sale of a tract of land, to settle and adjust a certain account, or the like. That the authority of an agent is limited to a particular kind of business does not make him a special agent. Few, if any, agents of a railroad company do, or can attend to every kind of business of the company, but to each one are assigned duties of a particular kind, or relating to a particular branch or department of the business." Wharton says: "A general agent is one who is authorized by his principal to take charge of his business in a particular line." Wharton Agency, 117. It results from these familiar principles, that the conductor of a train, so far as concerns the direct and immediate management of the train when it is out on the road, is, in the absence of some superior officer, the general agent of the company; but even general agents do not have universal powers, and the authority of such agents is to be deduced from the facts surrounding the particular transaction. 2 Greenl. Ev., §§ 64-64a. In some instances then the conductor is the general agent of the company, and we think it clear upon principle and authority, that he is such an agent for the purpose of employing surgical assistance where a brakeman of his train is injured while the train is out on the road, and where there is no superior officer present, and there is an immediate necessity for surgical treatment. A conductor cannot be regarded as having authority to employ a surgeon when the train is not on the road under his control, or where there is one higher in authority on the ground, or where there is no immediate necessity for the services of a surgeon. The rule which denies a recovery where there is mutual negl gence applies only between the immediate parties. The courts do not extend the rule to cases where the defendant's negligence and that of a third person concur in producing the injury. Thus if two trains come into collision and the managers of both are negligent, an action may nevertheless be maintained by a passenger. Pittsburgh, etc., R. Co. v. Spencer, 98 Ind. 186. So if a man is riding with another and is injured by a collision occurring through the concurrent negligence of the driver of the vehicle and the servants of a railroad train engaged in running it, he may recover, notwithstanding the contributory negligence of the driver of the VOL. XLIX-96 Terre Haute and Indianapolis Railroad Company v. McMurray. vehicle in which he was riding Town of Albion v. Hetrick, 90 Ind. 545; s. c., 46 Am. Rep. 230; Robinson v. New York Cent., etc., R. Co., 60 N. Y. 11; s. c. 23 Am. Rep. 1; Wabash, etc., Ry. Co. v. Shacklet, 105 Ill. 364; s. c., 44 Am. Rep. 791; Masterson v. New York Cent., etc., R. Co., 84 N. Y. 247; s. c., 38 Am. Rep. 510; Cuddy v. Horn, 46 Mich. 596; s. c., 41 Am. Rep. 178; Bennett v. New Jersey, etc., Co., 36 N. J. L. 225; s. c., 13 Am. Rep. 435. The doctrine of contributory negligence is by some authorities based on the principle that a man must not cast himself into danger, and by others upon the principle that one who is himself in fault cannot invoke assistance from the courts against another who shares the fault with him. Butterfield v. Forrester, 11 East, 60; 1 Thomp. Neg. 485. Other authorities put the doctrine on the ground that the interests of the whole community require that every one should take such care of himself as can reasonably be expected of him. Shear. & Redf. Neg., § 42. It is obvious that whatever be deemed the true basis of the doctrine, it cannot apply where the case goes beyond the plaintiff himself, or what in law is the same thing, his agent or servant. It is therefore plain that where a surgeon sues for professional services rendered at the request of the agent of a railroad corporation, no question of contributory negligence is involved. This is manifestly the practical, just and reasonable rule. It cannot be expected that a surgeon summoned to attend a case of pressing need shall be required to stop and investigate the causes of the accident, and thus take upon himself the functions of judge and jury. It is but just that he should be deemed entitled to rely on the statement of the corporate agent. Where a principal puts it in his agent's power to exercise apparent authority, the man who in good faith acts upon the statements of the agent should be protected. Cruzan v. Smith, 41 Ind. 288. The Supreme Court of Kansas, in a case not unlike the present, said: "The defendant in error was not compelled to institute inquiry as to the moral or legal liability of the railroad company to take care of the disabled employee before receiving him into his hotel, after the general agent of the company had agreed that the company would pay for the board and service." Atlantic, etc., R. Co. v. Reisner, 18 Kans. 458. The employment of a surgeon is not an acknowledgment of a liability to the injured servant, nor can any admission be tortured Terre Haute and Indianapolis Railroad Company v. McMurray. from such an act. Evidence of such an employment would be incompetent in an action by the servant, and no admission can therefore be implied. The employment of a surgeon is nothing more than an act of humanity and justice demanded of a railroad company in behalf of a servant injured in its service. Judgment affirmed. ZOLLARS, C. J., dissents on the ground that it is not sufficiently shown that the conductor had authority to bind the company by his contract with appellee. ON PETITION FOR A REHEARING. ELLIOTT, J. Counsel for the appellant misconceive the drift of the reasoning in our former opinion as well as the conclusion announced. We did not decide that a corporation was responsible generally for medical or surgical attention given to a sick or wounded servant; on the contrary, we were careful to limit our decision to surgical services rendered upon an urgent exigency, where immediate attention was demanded to save life or prevent great injury. We held that the liability arose with the emergency and with it expired. We did hold that where the conductor was the highest representative of the corporation on the ground, and there was an emergency requiring immediate action, he was authorized to employ a surgeon to give such attention as the exigency of the occasion made imperiously necessary; but we did not hold that the conductor had a general authority to employ a surgeon where there was no emergency, or where there was a superior agent on the ground. We think our decision was well sustained by the authorities there cited, and that it is further supported by the reasoning in Chicago, etc., Ry. Co. v. Ross, 112 U. S. 377, and Pennsylvania Company v. Gallagher, 40 Ohio St. 637; s. c., 48 Am. Rep. 689. If the conductor, who is the superior agent of the company on the ground, cannot represent the principal so far as to employ a surgeon to render professional services to an injured servant, and prevent the loss of life or great bodily harm, then it must be said, as it was said by the Supreme Court of the United States in Chicago, etc., Ry. Co. v. Ross, supra, that "If such conductor does not represent the company, then the train is operated without any representative of its owner." The decision in Louisville, etc., R. Co. v. McVay, 98 Ind. 391,* * Post, 770. |