Dixon v. New York, New Haven, & Hartford Railroad
92 N.E. 1030
Mass.
1910
Check Treatment
Sheldon, J.

The jury could find on the evidence that Coombs was in a position of imminent peril, struggling to restrain a plunging horse upon or close to a track of the defendant- upon which a train was approaching, and that the plaintiff came to his assistance for the purpose of rescuing him from the peril. The contention of the defendant that Coombs was endeavoring merely to save his master’s property and that the plaintiff went upon the track for the sole purpose of assisting Coombs in this effort was for the jury to determine. It was not necessarily and as matter of law a trespass or a negligent act for the plaintiff to attempt to rescue Coombs from the impending danger, *130evеn at the risk of his own life. It was for the jury to say whether under the existing circumstances the plaintiff’s act was so rash and reckless as to preсlude a finding that he was in the exercise of due care and was justified in going upon the track. This is the doctrine of Linnehan v. Sampson, 126 Mass. 506. And there is a great body of аuthority in other courts for the proposition that it may not be negligence for one not acting rashly or recklessly to expose himsеlf voluntarily to great danger, even to the risk of life and limb, in order to rescue another from a like peril, and that such a voluntary expоsure is not to be regarded ‍​​​​​‌‌‌‌‌​‌​‌‌‌‌‌‌​​​​‌‌‌​‌‌​‌​‌‌​​‌‌​‌‌​‌‌​‌​‌‍as rash or reckless if there appears to be a fair chance of success, whether the person in danger is or is not a child or an aged or decrepit person, and even though the person attempting the rescue knows that it invоlves great hazard to himself without a certainty of accomplishing the intended rescue. The leading case is Eckert v. Long Island Railroad, 43 N. Y. 502, and 57 Barb. 555, the doctrine of which has been generally followed. Pittsburg, Cincinnati, Chicago & St. Louis Railway v. Lynch, 69 Ohio St. 123. Pennsylvania Co. v. Langendorf, 48 Ohio St. 316. Becker v. Louisville & Nashville Railroad, 110 Ky. 474. Gibney v. State, 137 N. Y. 1. Manzella v. Rochester Railway, 93 N. Y. Supp. 457. Corbin v. Philadelphia, 195 Penn. St. 461. West Chicago Street Railroad v. Liderman, 187 Ill. 463. Donahoe v. Wabash, St. Louis & Pacific Railway, 83 Mo. 560. Mobile & Ohio Railroad v. Ridley, 114 Tenn. 727. Louisville & Nashville Railroad v. Orr, 121 Ala. 489. Peyton v. Texas & Pacific Railway, 41 La. Ann. 861. Condiff v. Kansas City, Fort Scott & Gulf Railroad, 45 Kans. 256. Other cases are collected in 29 Cyc. 523, 524; 7 Am. & Eng. Encye. of Law, (2d ed.) 394, 395 ; and in the note to Mobile & Ohio Railroad v. Ridley, 4 Ann. Cas. 925, 928.

It follows that the defendant’s first request for instructions was properly denied. It is true, as was held in Linnehan v. Sampson, 126 Mass. 506, and in many of the other cases above cited, that it is for the jury to say, upоn all the circumstances, including the existing emergency and the need of immediate action under which they may find that the plaintiff acted, whеther in fact his conduct was that of a reasonably prudent man; and it may be that the judge in his charge did not go far *131enough in requiring the jury, upon this issue, оnly to find whether the plaintiff “ saw, ‍​​​​​‌‌‌‌‌​‌​‌‌‌‌‌‌​​​​‌‌‌​‌‌​‌​‌‌​​‌‌​‌‌​‌‌​‌​‌‍and as a reasonable man believed that Coombs was in imminent danger of his life,” and “ believed that he could rеscue Coombs . . . and at the same time avoid danger himself.” But it is not clear that this question was intended to be saved; it has not been argued by the dеfendant; and we need not consider it.

But it is necessary in this case, as in all similar actions, that negligence on the part of the defendаnt or its servants should be shown, even though the plaintiff was himself free from all blame. Hirschman v. Dry Dock Railroad, 46 App. Div. (N. Y.) 621. De Mahy v. Morgan's Louisiana Co. 45 La. Ann. 1329. Spooner v. Delaware, Lackawanna & Western Railroad, 115 N. Y. 22. Evansville Crawfordsville Railroad v. Hiatt, 17 Ind. 102. Thomason v. Southern Railway, 113 Fed. Rep. 80. In such a case as this, however, it is enough to hold the defendant ‍​​​​​‌‌‌‌‌​‌​‌‌‌‌‌‌​​​​‌‌‌​‌‌​‌​‌‌​​‌‌​‌‌​‌‌​‌​‌‍if there was negligence on its part toward either Coombs or the plaintiff. Maryland Steel Co. v. Marney, 88 Md. 482. Saylor v. Parsons, 122 Iowa, 679. Donahoe v. Wabash, St. Louis & Pacific Railway, 83 Mo. 560. Its negligence towards Coombs will be treated as directly inducing the attempt to rescue him and thereby causing the injury to the plaintiff. Such negligence could be found if the defendant was running its train in a manner likely to cause injury to any one properly in that vicinity. That was the only negligence that was shown in many of the cases already referred to. In our opinion there was such evidence here. This train was coming into the defendant’s freight yard past an open spaсe about forty feet wide, arranged, paved and adapted by the defendant for use as a driveway by teams coming to the yard to unlоad cars standing upon the tracks that bordered its sides. Coombs and the plaintiff, like all other teamsters having occasion to comе to this yard to receive freight for their employers, were invited by the defendant to come to this space with their horses and wagons, and there take their goods from the cars which the defendant thus treated as its temporary freight houses. Ladd v. New York, New Haven, & Hartford Railroad, 193 Mass. 359. Apparently the open spаce was in almost constant, certainly in frequent, use for this purpose. It was the duty of the defendant’s servants in charge of *132trains coming upоn adjacent tracks to run them with this fact in mind, so as to avoid the risk of accidents. But there was evidence that this train came in upon track number three, with more than usual noise of puffing through the smoke stack, much louder, both Coombs and the plaintiff testified, than they had heard beforе in that vicinity, in a manner which was likely to frighten and did actually frighten the horses. The jury could find also that the engineer and the fireman ought, by keeping a proper lookout as they approached this driveway, to have seen that a frightened horse had broken away from its wagоn and was struggling with Coombs upon the track, in a position which threatened grievous injury to him. If so, it could be found that they were negligent in failing to see this, оr if they saw it, in not stopping their engine in season to avoid the accident. Besides this, there was evidence that the train had come either to a full stop or almost to a stop before the plaintiff went across the track to the assistance of Coombs, at so small a distance ‍​​​​​‌‌‌‌‌​‌​‌‌‌‌‌‌​​​​‌‌‌​‌‌​‌​‌‌​​‌‌​‌‌​‌‌​‌​‌‍that proper watchfulness by the engineer or the fireman would at once have disclosed the situation to them, and thаt it then had started up without any notice or warning and struck the plaintiff. There was evidence also that only one man, the engineer, was in thе cab of the engine. Under these circumstances we are of opinion that the defendant’s second and third requests were rightly refused. And we do not find that any request was made or that any exception was saved by the defendant which raises the question what duty, if any, it owed to the рlaintiff if, although he had gone upon its track for the purpose of rescuing Coombs from deadly peril and so was not a mere trespаsser or necessarily negligent, yet his presence there was, without fault on their part, unknown to its servants who were in charge of the train. This is of course a different question from that of his right to go or to be upon the track at all; and the latter point is all that seems to have bеen saved or that has been argued by the defendant’s counsel as to this part of the case.

It has been earnestly contended thаt there was no evidence that the plaintiff’s injury was due to any reckless or wanton conduct of the defendant’s servants. But the parties had agreed that a verdict on the second count for the plaintiff included a *133like verdict on the first count. There was no hardship to the dеfendant in this agreement, because the judge, evidently with the consent of the plaintiff, ruled that he could not recover upon the second count without proof of his own care. Of course this ruling could not have been given unqualifiedly without the plaintiff’s consent. Banks v. Braman, 188 Mass. 367, and 192 Mass. 162, note. Aiken v. Holyoke Street Railway, 180 Mass. 8, and 184 Mass. 269. Yancey v. Boston Elevated Railway, 205 Mass. 162, 169. It follows that the рlaintiff is at least entitled to a judgment upon the first count, and we need not consider whether there ‍​​​​​‌‌‌‌‌​‌​‌‌‌‌‌‌​​​​‌‌‌​‌‌​‌​‌‌​​‌‌​‌‌​‌‌​‌​‌‍was evidence to sustain the finding that the injury to him was done recklessly, wantonly and with gross disregard of his safety.

Exceptions overruled.