82 W. Va. 557 | W. Va. | 1918
Whether a person injured in rescuing another from danger occasioned by the negligence of the defendant, is precluded from right of recovery by his knowledge of the danger incident to his attempt to effect the rescue, is an inquiry raised on this writ of error to a judgment for $500.00 in favor of a person bearing such relations to the defendant and a third party, one Doris Smith. Other grounds relied upon for reversal are denial of proof of negligence and alleged errors in rulings upon instructions.
While Doris Smith, was leisurely crossing a side-track and the main track of the defendant’s railroad at its West Union station, in the customary and designed method of reaching the platform from which she intended to board one of its trains, after having purchased a ticket entitling her to carriage on said train, the station and platform being on opposite sides of the tracks, the train came in at a comparatively low rate of speed and would have run her down and probably killed her, but for the assistance rendered her by the
Failure to maintain an adequate lookout covering the entire track, while running into the station, under the circumstances shown, was evidence of negligence. McGuire v. N. & W. R’y. Co., 70 W. Va. 588; Schoonover v. B. & O. Railroad Co., 69 W. Va. 560. TMs rule seems to be general and it is especially applicable here, in view of the necessity for the crossing of the tracks, by passengers, to obtain access to the cars from the platform, known to the servants and employees of the defendant company. If such a lookout had been maintained, the perilous situation of Miss Smith would have been discovered in ample time to have prevented danger
As to the relation between the negligent act and the person injured, this court seems to have acquiesced in the weight of authority. A person injured in effecting the rescue of another from danger occasioned by the negligence of a third party is not precluded from right of recovery, on the ground of his own immunity from danger, or his voluntary incur-rence of risk. If his intervention was not a rash or clearly imprudent act, under the circumstances, he may recover. Walters v. Appalachian Power Co., 75 W. Va. 676, 684; Schwarts v. Schull, 45 W. Va. 405, 414. An overwhelming weight of authority denies that voluntary incurrence of risk in effecting a rescue from danger occasioned by negligence amounts to contributory negligence, unless the act of intervention was performed under such circumstances as would make it rash or reckless in the estimation of ordinarily prudent persons. Eckert v. L. I. Railroad Co., 43 N. Y. 502, 3 Am. Rep. 721; Peyton v. T. & P. Railway Co., 41 La. Ann. 861, 17 Am. St. 430; Vonahoe v. Wabash etc. R’y. Co., 83 Mo. 560; Corbin v. City of Philadelphia, 195 Pa. St. 461; 49 L. R. A. 715; Schroeder v. G. & A. Railroad Co., 108 Mo. 322; Pennsylvania Co. v. Langendorf, 48 O. St. 316; Pittsburg etc. Co. v. Lynch, 69 O. St. 123; L. & N. Railroad Co. v. Orr, 121 Ala. 489; Maryland Steel Co. v. Marney, 88 Md. 482; Connell v. Prescott, 20 Ont. App. Rep. (Can.), 49; Condiff v. Kansas City Ft. S. & G. Railroad Co., 45 Kan. 256; Central Railroad, Co. v. Crosby, 74 Ga. 737; Spooner v. Railway Co., 115 N. Y. 22; Gibney v. State, 137 N. Y. 1; Linnehan v. Sampson, 126 Mass. 506; West Chicago St. R’y. Co. v. Liderman, 187 Ill. 463; Wright v. Atlantic etc. R. Co.
There áre a few decisions and some judicial expressions in dissenting opinions, to the contrary. Northern Railroad Co. v. Anderson, 25 U. C. C. (Can.), 301; Blair v. Grand Rapids Co., 60 Mich. 124; Mitchell, J., in Corbin v. Philadelphia, 195 Pa. St. 461. They deny any basis for the rulé in legal principle or logic. If there is any right of intervention, under circumstances malting it possible without danger on the part of the rescuer, such right is certainly not denied or destroyed by conditions that would not preclude the exercise of other rights. The right of one person to render another assistance, when the latter is in danger from any cause, under conditions rendering it safe to do so, is as clear as his right to perform any other lawful act. Voluntariness does not vitiate or impair it, nor detract from it in any sense. That quality is inherent in most of our acts. We walk abroad for mere exercise, often unnecessary, or to gratify idle curiosity, as we have clear light to do, and, if injured by somebody’s negligence in the exercise of such rights, we may recover. There is a moral obligation, as well as legal right, to effect rescues from all sorts of danger, when it is practicable to do so. That the danger is occasioned by a negligent act does not affect either the obligation or the right. Hence, it cannot logically affect the consequences of wrongful injury in the exercise thereof.
In almost every instance of rescue, there is an emergency calling for quick determination of the course of action and
The right of intervention finds support also in the principle of analogy. Negligence is wrongful, but not necessarily nor ordinarily criminal, but wrong and crime bear a close relation in principle. Any citizen has a perfect legal right to interpose for prevention of the commission of crime and protection of others threatened with criminal injury. It is his duty to prevent the perpetration of a felony, and his killing of the felon, as a necessary means of doing so, when it cannot otherwise be prevented, is justifiable. He may also justifiably take life, in the protection of another from death or serious bodily injury, under the law of self-defense. If a person intending to kill his personal enemy mistakenly attack his Mend, he is guilty of assault with intent to kill. McGehee v. State, 62 Miss. 772; State v. Briggs, 58 W. Va. 291. In negligence, the intent is immaterial, but the element of civil wrong is present in it as well as in crime, and the actor is responsible for his wrongful acts resulting in injury. If criminally responsible for injuries intended for one person and falling upon another, why may a man not be consistently held liable civilly for a wrongful act which threatened one person but actually fell upon another, though the act be
Plaintiff’s instruction No. 3 telling the jury the negligence of Doris Smith was not imputable to the plaintiff, is fully sustained by the conclusion just stated, and the court properly overruled the objection to it and gave it.
Two other instructions given were excepted to because they authorized inclusion of compensation for mental suffering in the assessment of the damages. Plaintiff’s injuries were not serious. One of his knees was sprained and bruised and he was disabled for a week or two. Such an injury may have carried a degree of pain and mental suffering. The-instructions left it to the jury to say whether it did or not, and, if any, to determine the degree thereof. There was some evidence of it, and that justified the giving of the instructions.
Plaintiff’s instruction No. 2 was objected to because it was abstract in form and imposed duty upon the defendant toward passengers, in the absence of an allegation that the plaintiff was a passenger. It is technically erroneous to give an instruction in the abstract, but not cause for reversal, if the law propounded by it is applicable to the case. Parker v. Building & Loan Ass’n., 55 W. Va. 134. The reference to passengers in the instruction was justified by the allegation that Doris Smith and others present were passengers and that the negligence consisted of want of care in the running of the train to the passenger station. The nature of the place and the character of the people generally assembled there imposed the omitted duty, and the plaintiff, whether a passenger or not, was within its protection, it being general in its nature and not dependent upon a peculair personal relation of the injured party.
Defendant’s instruction No; 5 was properly refused for lack of evidence to sustain the theory it propounded. It is an admitted fact that Doris Smith was not seen by anybody on the engine until it was almost upon her. Relative duties dependent upon a different state of facts were not in
For the reasons stated, the judgment will be affirmed.
Affirmed.