195 Pa. 461 | Pa. | 1900
Lead Opinion
Opinion by
The son of plaintiff lost his life in going to the rescue of an imperiled fellow-being. He bravely descended into danger and found awaiting him the death from which he would have saved another. The endangered boy came back from his peril and lived, and we must now determine whether the mother of the deceased can be pecuniarily compensated for the Joss she has sustained, or must be content with the consolation that her son died a heroic death. She makes claim against the city of Philadelphia, alleging that its negligence was responsible for the damages she has suffered, and, unless sufficient proof to sustain her allegation was submitted to the jury, she cannot recover. The primary question involved is, the alleged negligence of the city; for, if it was “ guiltless of all wrong,” it is not liable to her; and, no matter how heroically her son may have given up his own life in going down into danger to save another, her appeal to the law to compel the appellee to compensate her is in vain. The learned trial judge, after the testimony on each side had been submitted to the jury, directed a verdict for the defendant, giving no reasons for so taking the case from their consideration. His judgment may have been that there was no sufficient evidence to establish the negligence of the defendant, or he may have thought that, even if the city was negligent, the rescuer’s conduct was such as to prevent a recovery. To properly dispose of this appeal, we must pass
In the summer of 1896, the city of Philadelphia had dug several trenches on the north side of Clearfield street, west of Fifth street, in an attempt to locate an old sewer that had been constructed many feet below the surface of the street. After having excavated to the depth of twenty-eight feet, according to the testimony of John Abel, called as a witness by the city, the effort to find the sewer was abandoned, because the gas had become so strong at that depth- that workmen could no longer remain at the bottom of the trenches. The clear preponderance of the testimony is, that, for several days before Corbin went' down to his death in one of these trenches, work had been abandoned by the city for the reason stated; and it seems to be equally clear that the ordinary safeguards to protect the passing public from falling into these holes had not been provided, though the absence of such protection is not material hr determining the questions that confront us. The plaintiff makes no claim that she lost the supporting arm of her son because he had fallen into a hole or ditch, negligently left unguarded by the city, with no notice to the passerby that a pitfall was before him; but her complaint is, that, though these trenches were open and notorious, avoidable by all who traveled the street, no sign had been made, no warning given, of the death which the city knew lurked below, and to which at any time, the unsuspecting might descend. These trenches had been dug in a street in a populous portion of the city. A church, attended by 600 or 700 children was within 100 feet of them, and a public sehoolhouse within a square. At the time Corbin met his death it was vacation, and the school building was closed; but the lot on the north side of Clearfield street, immediately north of these trenches, extending a whole square, from Fifth street to Sixth street, was open, having no buildings on it, and was used as a playground. Boys were constantly playing ball upon it, and, on Saturdays, after the factories had closed, hundreds of tired men and boys went to it for the recreation found in their innocent games. Under these admitted conditions, the trenches were dug, and work finally suspended upon
It is insisted that the city of Philadelphia was not bound to anticipate the descent of any one into this danger, and, therefore, not negligent in failing to adopt proper means for the ex-clhsion of all persons from these holes. We cannot sustain this view. If the city was negligent, it was liable for the consequences of its neglect, though those consequences were not and could not, by any ordinary prudence, have been anticipated: Oil City Gas Co. v. Robinson, 99 Pa. 1. These trenches were across a public street, along which men and women daily passed, and with no notice or warning of the deadly danger below, and, with the easy means of descent, can it be seriously questioned that the city ought not to have anticipated that what did happen might happen? Ought it not reasonably to have been anticipated that, if the hat of a passerby should be carried by the wind from his head tb the bottom of one of these holes, he would most naturally go or send some one down to recover it? The veil or handkerchief of a passing woman might be blown into the trench, and he who would not anticipate her clamor that someone go down and get it for her, and that chivalrous response would be instantly made, knows little of human nature. Under the circumstances, the city ought to have anticipated
If it is true, as has often been said, that circumstances beget duties, the duty of the city, after discovering the dangerous gas in the trenches and its effect upon the workmen, was clearly to give notice and warning of it to the public, and to promptly take steps to prevent a descent into it, not unlikely to occur at any time from causes'already suggested and others that might be mentioned.
In Hydraulic Works Co. v. Orr, 83 Pa. 332, there was a platform in' a private alley, communicating with a public street. This platform was raised and lowered for the convenience of the company in receiving and shipping goods, and when not in use, was kept in place by inclining against the wall, without any fastening. At the entrance to the alley were gates, which were opened and shut, as necessity required, and upon them was posted, “ Private; No Admittanceand yet a child having strayed into this private alley and having been caught under the platform, which tilted over on it, in an action brought by the parents to recover damages for its death, it was held that the negligence of the company was properly submitted to the jury. It was there said by Chief Justice Ag-new : “ But it has been often said, duties arise out of circumstances. Hence where the owner has reason to apprehend danger, owing to the peculiar situation of his property and its openness to accident, the rule will vary. The question then becomes one for a jury, to be determined upon all its facts of the probability of danger
Abel, the city’s inspector of the sewer, and called as its witness, testifies that work had been abandoned on account of the gas, and if it be true, as testified by several witnesses called by plaintiff, that no workmen had been about the trenches for several days before Corbin’s death, how can it be righteously said that the city was not derelict in its duty ? On the other hand he states that workmen were on the premises until 12 o’clock of that day; and another witness, called by the plaintiff, testifies that, immediately after .the death a watchman was placed at the trenches, which were filled up the next day. Abel, evidently having felt that some precaution ought to be taken by the city to guard against this danger, said that, when he left the work at 2 o’clock, about two hours before the death of Cor-bin, he ordered Jim January to remain at the trenches until 6 o’clock, and then light a lamp. These directions were disregarded, for no watchman was on the premises at the time of the accident. Under the facts developed on this trial, the jury should have passed upon the question of the city’s negligence, and, if the learned trial judge was of opinion that sufficient had not been submitted to sustain plaintiff's allegation that it was culpable, he was in error.
Assuming the city to have-been guilty of negligence, was the conduct of Corbin such, in going to the rescue of Walker as to prevent a recovery by the plaintiff ? In other words, is she debarred from recovery because her son was guilty of contributory negligence in voluntarily incurring peril in an effort to save the life of Walker, which had been endangered by the negligence of the city ? This is ah interesting and most important question, but free from difficulty, in the light of reason and the thoughtful consideration it has received from many high tribunals. A rescuer, one who, from the most unselfish motives, prompted by the noblest impulses that can impel man to deeds of heroism, faces deadly peril, ought not to hear from the law
We first call attention to Eckert v. Long Island Railroad Co., 43 N. Y. 503, fairly regarded as the leading case upon the subject, and extend our indorsement to it, as well as to the authorities subsequently cited. Wo quote at length from this case as follows: “ The important question in this case arises upon the exception taken by the defendant’s counsel to the denial of his motion for a nonsuit, made upon the ground that the negligence of the plaintiff’s intestate contributed to the injury that caused his death. The evidence showed that the train was approaching in plain view of the deceased, and had he, for his own purposes, attempted to cross the track, or, with a view to save property, placed himself voluntarily in a position where he might have received an injury from a collision with the train, his conduct would have been grossly negligent, and no recovery could have been had for such injury. But the evidence further showed that there was a small child upon the track, who, if not rescued, must have been inevitably crushed by the rapidly approaching train. This the deceased saw, and he owed a duty of important obligation to this child to rescue it from its extreme peril, if he could do so without incurring great danger to himself. Negligence implies some act of commission or omission wrongful in itself. Under the circumstances in which the deceased was placed, it was not wrongful in him to make every effort in his power to rescue the child, compatible with a reasonable regard for his own safety. It was his duty to exercise his judgment as to whether he could probably save the child without serious injury to himself. If from the appearances, he believed that he could, it was not
In Gibney v. The State of New York, 137 N. Y. 1, plaintiff with her husband and infant son was crossing a bridge over the Erie canal, the son fell into the canal through an opening in the railing of the bridge, which had been left unguarded; the father plunged into the canal to rescue him, and both were drowned. Plaintiff recovered for the damages she had sustained, and, in affirming the judgment of the lower court, it was held that, while the immediate cause of the peril to which the father naturally and instinctively exposed himself was the peril of the child, the cause of the peril in both cases might be attributed to the culpable negligence of the state in leaving the bridge in a dangerous condition. In this case, Eckert v. Long Island R. R. Co. was again approved.
It was held in Peyton v. Texas and Pacific Railway Co., 41
The question of the contributory negligence of a rescuer is considered in Linnehan v. Sampson, 126 Mass. 506, where it was contended, on behalf of the defendant, that the calls of humanity did not excuse him. It was held, however, that the question whether the plaintiff’s conduct on the occasion of the injury was wanting in reasonable prudence and caution, in view of all the circumstances, was properly submitted to the jury as a question peculiarly for them to decide : “ They were to consider all the circumstances, and, among other things, that the life of a fellow creature was in extreme danger; but they must have understood that reasonable prudence and caution were elements in the case which plaintiff must prove. . . . The emergency was sudden, allowing but little time for deliberation. Some allowance might well be made for the confusion of the moment. . . . The law does not require cowardice or absolute inaction in such a state of things. Neither does it require, in such an emergency, that the plaintiff should have acted with entire self-possession, or that he should have taken the wisest and most prudent course, with a view to his own self-preservation, that could have been taken. He certainly may take some risk upon himself, short of mere rashness and recklessness.”
In Donahoe v. Wabash, St. Louis & Pacific Railway Co., 83 Mo. 560, it was ruled that the negligence of .the company as to the person in danger was to be imputed to the company with respect to him who attempted the rescue.
It is not negligence per se for one to voluntarily risk his own safety or life in attempting to rescue another from impending danger. The question whether one so acting should be charged with contributory negligence in an action brought by him to recover damages for injuries received in attempting the rescue, is one of mixed law and fact, and should be submitted to the jury, upon the evidence, with proper instructions from the court. While one who rashly and unnecessarily exposes him
The late and well considered case of the Maryland Steel Co. of Sparrows’ Point v. Marney, 88 Md. 482, sustains the views expressed in the foregoing authorities, and by their “ aid,” it was again ruled that one who voluntarily incurs peril caused by the negligence of another, in order to save the life of one imperiled by the same negligence, is not debarred from recovery upon the ground of his own contributory negligence.
.Recognizing the manifest correctness of the views expressed in the foregoing and other cases, the best text writers have properly adopted them as the law for guidance of courts and juries. When one risks his life, or places himself in a position of great danger, in an effort to save the life of another, or to protect another who is exposed to a sudden peril or in danger of great bodily harm, such exposure and risk for such a purpose are not negligent. The law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons: Beach on Contributory Negligence, section 15. One who imperils his own life for the sake of rescuing another from imminent danger is not chargeable, as a matter of lawVith contributory negligence, and, if the life of the rescued person was endangered by the defendant’s negligence, the rescuer may recover for the injuries which he suffered from the defendant in consequence of his intervention: Shearman & Redfield on Negligence, section 85.
In view of what we have said, and in the light of the authorities approvingly cited, this case was improperly disposed of by the court below and must be sent back for another trial, that a jury may pass upon the question of the city’s negligence and
It is finally contended on behalf of the city, that it is not liable, because the alleged negligence was that of an independent contractor. As to this defense, it need only be said that, under the evidence offered by the city itself, it is without merit. For the reasons given the judgment is reversed and a venire facias de novo awarded.
Dissenting Opinion
dissenting:
I cannot see that the city was guilty of any negligence that contributed to the accident. It had obstructions around the ditch sufficient to indicate that the place was dangerous. If one had fallen in at night, the obstructions might be held insufficient, and it may even be admitted so far as this case is concerned that if one going down in daytime with only the apparent risk of the descent before him, had ignorantly encountered the gas, ho might have had an action for negligence in failing to warn him of the concealed danger. But any such negligence is wholly irrelevant to this case. Corbin saw the danger from the condition of the boy Walker, went into it knowingly, and
There is therefore in my view only one question in the case, and that is whether the circumstances exonerated Corbin from the ordinary legal consequences of his act. I cannot see how the goodness or humanity of his motives can either exempt him or transfer the risk he ran to the city. It is a clear case for the application of the principle volenti non fit injuria.
If a known danger is encountered in the performance of a specific duty, as in the case of risks taken by a fireman or a policeman a different question is presented, but there was nothing of this kind here for Corbin was a pure volunteer.
I have read the opinions cited by my Brother Brown with close attention to discover from them some recognized principle of law to sustain the results arrived at. But I find nothing beyond an emotional basis of admiration for heroism, very creditable to human nature but having no proper place in the administration of justice.
I would therefore affirm this judgment both on the absence of any negligence by the city which contributed to the accident, and on the voluntary character of Corbin’s assumption of a known risk.
Green, C. J., and Fell, J., join in this dissent.