Laubheim v. Netherland Steamship Co. — 11 N.Y. St. Rep. 469

Majority

p. 469

Bertha Laubheim, App’lt, v. Netherland Steamship Company, Resp’t.

(Court of Appeals,

Filed October 18, 1887.)

Headnote

1. Common carrier—Steamship companies—Duty as to employment of PHYSICIAN OR SURGEON—NEGLIGENCE—LIABILITY.

If by law or by choice a steamboat company is bound to provide a surg.-on for its ships, its du y to the passenger is to select a reasonably competen*, man for that office, and it is liable only for a neglect of that duty. It is responsible solely for its own negligence and not for that of the surgeon employed. In performing such duty it is bound only to the exercise of reasonable care and diligence, and is not compelled to select and employ the highest skill and longest experience.

2. Negligence—When steamship not guilty of.

The surgeon selected had been upon another steamship line for three years, and so far as appears was reasonably competent for his duty: Held, that, if in this case he erred in h:s treatment it does not prove that he was incompetent, or that it was negligence to appoint him.

Appeal from a judgment of the general term of the New York superior court affirming a judgment entered at a trial term dismissing the complaint, with costs.

The plaintiff was a steerage passenger on one of the steamships belonging to defendant plying between Rotterdam and New York. When at sea she fell on the deck of the vessel and fractured the knee-cap of one knee. She was taken in charge by the ship surgeon and, as was claimed, was treated so unskillfully and negligently that after she landed it became necessary to amputate the leg. Evidence was given to establish these facts. It was proved that the ship surgeon had been on the defendant’s steamship for several years, and for his services received a salary from the defendant annually and a certain sum from each passenger carried. The court dismissed the complaint.

A. Blumenstiel, for app’lt; S. W. Rosendale, for resp’t.

—It is not necessary in this case to determine whether, at the date of the accident to the plaintiff, the steamship company owed a duty to its passengers to provide a surgeon for their care and safety in the emergency of sickness or accident; or whether, having voluntarily assumed that duty, its position became identical -with that of a carrier bound by law to furnish such an officer; since either proposition may be granted without involving error in the judgment rendered.

If, by law, or by choice, the defendant was bound to provide a surgeon for its ships its duty to the passenger was to select a reasonably competent man for that office, and it is liable only for a neglect of that duty. Chapman v. Erie R.

p. 470

W. Co., 55 N. Y., 579 ; McDonald v. Hospital, 120 Mass., 432 ; Secord v. St. Paul R. R. Co., 18 Fed. Rep., 221 . It is responsible solely for its own negligence and not for that of the surgeon employed. In performing such duty it is bound only to the exercise of reasonable care and diligence and is not compelled to select and employ the highest skill and longest experience.

. There was no evidence it this case that the defendant was careless or negligent in its choice. The surgeon selected had been upon the Eotterdam line for three years, and, so far as appears, was reasonably competent for his duty. If in plaintiff’s case he erred in his treatment it does not prove that he was incompetent, or that it was negligence to appoint him. This case shows that one doctor of high reputation may deem it unwise ever to wire a broken knee cap, while another of equal ability thought it prudent to try the experiment. The experts called for the plaintiff decline to say that the ship’s doctor subjected the injury to bad treatment, taking into view the inconveniences of a tossing ship and the impossibility of giving absolute rest to the limb. This branch of the plaintiff’s case failed and the trial court was justified in a dismissal of the complaint.

The judgment should be affirmed.

All concur.