On Petition foe a Reheaeino.
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., R. W. Co. v. Ross, 31 Albany L. J. 8, and -Pennsylvania Company v. Gallagher, 40 Ohio St. 637 • S. 0., 48 Am. R. 689.
If the conductor, who is the superior agent of the company on the ground, can not represent the principal so far as to *372■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., R. W. 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. R. Co. v. McVay,post, p. 391, is not in conflict with our conclusion in the present case. There the road-master was not the superior agent within reach, and there was no emergency demanding immediate action. These are features which very essentially distinguish the two oases. We held in this case a doctrine held in the case cited, namely, that th.e.conductor, or other subordinate agent, has no general authority to employ a surgeon for a sick or wounded servant of the company; but we also held that where the conductor’, in control of the company's train and its brakemen, is the highest agent on the ground, he does possess an authority commensurate with an existing and pressing emergency. It seems clear to us, upon principles of fair justice and ordinary humanity, that some one must possess authority to meet an urgent exigency by employing surgical aid to save from death or great and permanent injury a servant under his control. As the reasoning in the McVay case clearly shows, there is still another material difference between the two cases, and that is this: There the road-master appeared to only have authority over the-repairs of the road; while here it appears that the conductor had charge of the injured servant, and was the highest officer of the corporation capable of acting as its representative in the emergency which had so suddenly arisen.
So far as concerns the general principle involved there is no conflict, but rather harmony, for the McVay case clearly recognizes the'doctrine that the highest agent capable of acting for the company may employ surgical aid in the proper case. Petition overruled. 0
Filed Jan. 27, 1885.