217 F. 959 | 9th Cir. | 1914
The plaintiff had been working as a carpenter in the employment of certain railroad contractors, who were
The court below ruled that the plaintiff was at the time of the accident a trespasser upon the defendant’s tracks, and that in using the push car as he did he was guilty of contributory negligence. The plaintiff’s action for damages, however, was tried upon the theory that the defendant had “the last clear chance” to avoid injuring the plaintiff, and that it negligently failed in its duty so to do. .
The defendant contends that the wrongful and unlawful conduct of the plaintiff, involving moral turpitude, placed him beyond the law of care, and that the defendant owed him no duty to avoid injuring him, even after his perilous position was seen. No authority is cited which sustains so harsh a doctrine. In Missouri & Pac. Ry. Co. v. Weisen, 65 Tex. 447, the court said:
“A roan does not forfeit Ms life, or Ms right to remain whole, hy going where he has no right to go, or being where he has no business.”
Cases are cited in support of the proposition that one who is engaged in violation of law cannot recover if his own illegal act was an essential element of his case. In the case at bar the plaintiff was engaged in no violation of a statute. It is true that he was a trespasser, but notwithstanding that fact the defendant’s' employés in .charge of the. operation of the train owed him the duty of ordinary
The deféndant, in view of the obstruction on the track and the plaintiff’s peril, was in duty bound to stop the train if possible. The situation was not like that in which an engineer of a train sees a man walking on the track several hundred feet ahead of him, and has the right to assume that the man will get out of the way. It was a situation in which the engineer discovered men on the track with a push car, which if it were not removed, and the train were not stopped, might occasion a disastrous collision. He saw that the two men were in the act of removing the push car, yet, according to the plaintiff’s testimony, the speed of the train had not been perceptibly diminished when the collision occurred. The plaintiff had knowledge and experience in the handling of trains, as was shown by the evidence, and on seeing the approaching train may well have assumed that it would be brought to a stop before reaching the place where he was. He was acting in an emergency, with but a moment for deliberation, and what
“The law has so high a regard for human life that it will not impute negligence to an effort to preserve it, and one who attempts to rescue another from imminent danger is not guilty of contributory negligence, although he thereby- imperils his own life, whether he is aware of the danger or not, where such attempt is made in good faith, in the belief that he could save the life of the person in danger and avoid injury himself, unless the attempt be made under circumstances amounting to rashness or recklessness in the judgment of a man of ordinary prudence. Error in judgment at such time will not defeat recovery.”'
The judgment is affirmed.