Dissenting Opinion by
Judge Sampson.The plaintiff in this action is seeking to recover damages for the death of her intestate occasioned, as it is claimed, by the failure of the appellee railway com*161pany to exercise reasonable care and diligence to provide for intestate, after Ms injury and in the emergency occasioned thereby, medical and surgical aid to save Ms life. Decedent was a faithful employe of the appellee railway company, and while in the line of duty was run over'by the train of appellee and.his legs cut off. He was bleeding moderately considering his wound, otherwise he was cheerful. His imminent danger from the hemorrhage was apparent. Appellee’s conductor, in charge of the train which ran over decedent, took control of the injured man, and after fifteen or twenty minutes waiting, placed him in the cab of the engine and carried him a distance of eight miles to a hospital, occupying in the journey about thirty minutes, and in moving and jostling him on the train he was caused to and did bleed profusely and from the loss of blood died immediately upon arriving at the hospital. He lived only about fifty or sixty minutes after his injury, and death resulted from loss of blood.
No principle is better established or sounder in reason than that where a railroad company, after injuring one of its employes engaged in the performance of duty, undertakes to procure medical and surgical aid for the injured man, it is bound to use a degree of diligence and attention adequate to the performance of the undertaking and is bound to exercise itself in proportion to the exigencies of the matter it undertook. This principle is recognized by text writers and courts generally throughout the United States. It has often been held that where the railroad company assumed and undertook in emergency to procure medical and surgical aid for the injured, but was guilty of such negligence and carelessness in so doing as to cause or allow aggravation of the injury or death, it was responsible in damages for such negligence. The facts in this case bring it fairly within this rule. This liability is rested upon the emergency occasioned by the injury and not upon any general principle that the railroad company is liable for a failure to provide medical or surgical assistance. The injured person must be so incapacitated as to be unable to take care of himself, and the injury must be of such character as to create an emergency requiring immediate assistance. In the Tippecanoe Loan, &c. Co. v. Cleveland Railway Company, 57 Ind. App. 644, it is said: “If an employe of the railroad company is injured as a result of hazards to *162■which his employment exposes him, .and if his injuries are of such a nature as to render him incapable «of caring for himself, it becomes the duty of the company to take such steps as are reasonably necessary and proper under the circumstances to'prevent aggravation of the injury through exposure, or for want of medical or surgical assistance. Under such circumstances if the servants of the company knowingly leave such injured person to die of exposure or to bleed to death from his wounds, a legal responsibility for such consequences will be imposed upon the company; and, if they take him into their custody, they must exercise reasonable care in the treatment accorded him. Under such circumstances the common instincts of humanity require that the helpless injured person should be taken in charge and removed to a place of safety and that, if necessary, medical or surgical aid should be provided.
. . . It is said that the duty arises with the emergency, and with it expires.” Ohio, Etc. R. Co. v. Early (1895) 141 Ind. 73; Terre Haute, Etc. R. Co. v. McMurry, 98 Ind. 358.
Troutman was not only an employe of the company, but was in the performance of his duties, as track foreman; he was injured by the train of defendant, and the conductor of this train, the chief agent of the company, present, took charge of decedent and over the objection and protest of neighbors and other persons present, carried decedent away to the hospital after the conductor had been informed by these neighbors and interested persons that a doctor had been called and would arrive immediately to give assistance. It required thirty minutes or more to travel from the place of injury to the hospital; the doctor called would have arrived in a moment or two, and in fact did arrive as the train was pulling out. Quick action was required. Life was ebbing away. It is admitted upon the demurrer to the evidence that the injured man came to his death through the loss of blood, and that the flow of blood could have been checked and his life saved by proper attention, such as the physician called could and would have rendered. It is in evidence also that the conductor knew the doctor had been called and that he would arrive at once to attend the injured man; and when requested not to remove the injured man, the conductor with an oath, superciliously refused and carried him away. Under this *163state of fact, it is a question for the jury to determine whether the railroad company, through its agent, exercised that degree of care and diligence which it owed to decedent after it assumed charge and undertook the performance of that duty. If the railroad company in moving the injured man to the hospital, eight miles away and requiring thirty minutes or more to make the journey, did what a reasonably prudent person under all the circumstances attending the case would usually have done, then it was not liable; but if, over the protest of interested persons then present and without the consent of the injured man, the railroad company voluntarily took charge and with knowledge that a physician had been called to- attend and would immediately arrive to render assistance, it, through its agents, carried the injured man away on a moving, jostling train, causing him to bleed to death, then it did not exercise that degree of care which a reasonably prudent person under such circumstances would have exercised, and is liable in damages. These facts and circumstances present a question for determination' by the jury. How the jury may have decided it is not of importance here. It was a question of fact and clearly within the province of the jury, and the trial court erred in directing a verdict for the defendant company.
It owed the injured man diligence and care equal to the emergency. Hid it exercise "such in carrying him away to the hospital when a reputable physician and surgeon was present to render immediate service ? "What impelled the agents of the railroad company to refuse to allow the local physician and surgeon to serve the dying man, and carry him eight miles to the railroad surgeon, is unknown; but there was nevertheless a motive, good or bad. If it was a rule or instruction of the company to its servants to carry an injured person to a surgeon in its employ rather than allow a surgeon.not in the employ of the company to treat the injured, the propriety of such action, under all the circumstances, was one of fact for the jury. The company having assumed charge of the injured man owed him the duty to act with diligence and care, and whether it did so under the facts in this case was for the jury. The judgment, therefore, should have been reversed for a new trial.
For these reasons I dissent from the majority opinion.