After the trespasser on the track of a railway company has been injured in collision with a train, and the servants of the company have assumed to take charge of him, the duty arises to exercise such care in his treatment as the circumstances will allow. We are unable, however, to approve the doctrine that when the acts of a trespasser himself result in his injury, where his own negligent conduct is alone the cause, those in charge of the instrument which inflicted the hurt, being innocent of wrong-doing, are nevertheless blamable in law if they neglect to administer to the sufferings of him whose wounds we might say were self-imposed. With the humane side of the question courts are not concerned. It is the omission or negligent discharge of legal duties only which come within the sphere of judicial cognizance. For withholding relief from the suffering, for failing to respond to the calls of worthy charity, or for faltering in the bestowment of brotherly love on the unfortunate, penalties are found not in the laws of men, but in that higher law, the violation of which is condemned by the voice of conscience, whose sentence of punishment for the recreant act is swift and sure. In the law of contracts it is now well understood that a promise founded on a moral obligation will not be enforced in the courts. Bishop states that some of the older authorities recognize a moral obligation as valid, and says:—
“Such a doctrine, carried to its legitimate results, would release the tribunals from the duty to administer the law of the land; and put, in the place of law, the varying ideas of morals which the changing incumbents of the bench might from time to time entertain.” (Bish. Cont. § 44.)
Ezelle’s injuries were inflicted, as the court below held, without the fault of the yardmaster, engineer, or fireman in charge of the car and locomotive. The railway company was no more responsible than it would have been had the deceased been run down by the cars of another railroad company on a track parallel with that of plaintiff in error. If no duty was imposed on the servants of defendant below to take charge of, and care for, the wounded man in such a case, how could a duty arise under the circumstances of the case at bar? In Barrows on Negligence, page 4, it is said:—
“The duty must be owing from the defendant to the plaintiff, otherwise there can be no negligence, so far as the plaintiff is concerned; ... and the duty must be owing to plaintiff in an individual capacity, and not merely as one of the general public.
“This excludes from actionable negligence all failures to observe the obligations imposed by charity, gratitude, generosity, and the kindred virtues. The moral law would obligate an attempt to rescue a person in a perilous position,—as a drowning child,—but the law of the land does not require it, no matter how little personal risk it might involve, provided that the person who declines to act is not responsible for the peril.” (See, also, Kenney v. The Hannibal & St. Joseph Railroad Company, 70 Mo. 252, 257.)
In the several cases cited in the brief of counsel for defendant in error to sustain the judgment of the trial court, it will be found that the negligence on which recoveries were based occurred after the time when the person injured was in the custody and care of those who were at fault in failing to give him proper treatment.
The judgment of the court below will be reversed, with directions to enter judgment on the findings of the jury in favor of the railway company.
All the justices concurring.[[116]]
HUNICKE v. MERAMEC QUARRY COMPANY
Supreme Court of Missouri, December 19, 1914.
Reported in 262 Missouri Reports, 560.
Woodson, P. J.... I do not understand counsel for plaintiff to make the broad claim that, in the absence of the question of emergency, presented in this case, it would have been the duty of the defendant to have furnished medical or surgical treatment for the injured man, upon the occasion mentioned; but I do understand counsel to contend, and which I believe is the law, that when an employee is engaged in any dangerous business for the master, and while in the performance of his duties, as such, he is so badly injured that he is thereby rendered physically or mentally incapable of procuring medical assistance for himself, then that duty, as a matter of law, is devolved upon the master, and that he must perform that duty with reasonable diligence and in a reasonable manner, through the agency of such of his employees as may be present at the time.