Pittsburg, Cincinnati, Chicago & St. Louis Railway Co. v. Lynch ( 1903 )

With respect to the general instructions given to the jury upon the subjects of negligence "and the measure of recovery, it is sufficient to say that they were in substantial accordance with the familiar cases. But regarding the peculiar circumstances of the ease, counsel for the company insist that the rescuer could not recover for the injury to him if the person rescued was in peril, because of such contributory negligence on her part as would have prevented a recovery by her if she had been injured. The trial judge was not requested to give to the jury an instruction embracing that view of the law; but the verdict for the plaintiff appears to have been returned without regarding the evidence tending to show negligence on her part, and it is assumed that this was in accordance with the instruction given that the law will not impute negligence to one attempting to save human life unless the attempt is made under such circumstances or in such a manner as to constitute rashness or recklessness. The jury had been told in another portion of the charge that there is no presumption of negligence against either party, and they perhaps understood the word impute to be used in its theological sense, and the instruction to signify that his right of action was not affected by her negligence. This portion of the charge was given in the language of this court in Railroad Co. v. Langendorf, 48 Ohio St., 316, but it is insisted that the case cited and the present ease are distinguishable by the two facts that the person whose rescue was there attempted was an infant incapable of negligence, while here she was chargeable with the consequences of her conduct; and Langendorf was a stranger to the company, while the plaintiff in the case was its employe. Obviously the cases present the suggested differences of fact. Are those differences of legal significance! Apparent support is given to the view presented by counsel for the company by commentators whose conclusions have been affected by misconceptions of the three cases Which they cite: Railroad Co. v. Hiatt, 17 Ind., 102; Donahue v. Railway Co., 83 Mo., 560; Sann, Admr., v. The H. W. Johns Manufacturing Co., 16 App. Div. (N. Y.), 252. In none of these cases was the judgment placed upon the ground that the person whose rescue was attempted had been guilty of negligence which was contributory merely, but that his was the only negligence which the case presented — that the defendant had not been negligent. The cases were determined upon the self-evident proposition that an action of negligence can not be prosecuted successfully against one who has not been negligent. In the present case the jury were distinctly instructed that their verdict must be for the company unless the evidence showed that it had been negligent as charged in the petition. The view of the law which was given to the jury in the present ease was expressed by Grover, J., in Eckert v. Railroad Co., 43 N. Y., 502. It has been adopted in Railroad Co. v. Langendorf, and in many other cases. It is worthy of notice that while some of them were cases of the rescue, or attempted fescue, of infants, that fact has not been regarded as having legal significance, and the judgments have been placed upon grounds which are found in the present case. If the view now urged by counsel is considered as unaffected by the decided cases, it must be rejected because of the impracticability of applying it. It invokes the principle of subrog'ation as the test of the plaintiff’s right to recover. ,If that principle should be adopted to determine his right to recover, for equal reason it should determine the amount of his recovery. By what process could it be ascertained what the extent of her injury would have been if the attempted rescue had failed? The view presented would lead to the conclusion that if the attempted rescue had failed and she had been injured without her fault, no right of action would have accrued to him because such right would'have accrued to her. The insurmountable difficulties which would be met in an attempt to apply the suggested doctrine in an action under the statute for the benefit of the next of kin when the injuries of the rescuer prove fatal, need not be stated. It seems clear that the law- will not admit of the suggested refinement.

Lynch’s right of action is not unfavorably affected by the fact that he was an employe of the company. Approbation of his conduct should not lead to a recovery in his favor contrary to the doctrines of the law upon the subject, but a brief consideration of those doctrines will show that his recovery was proper. The evidence tended to show, and the charge required that it should establish, the negligence of the company. One is liable for the consequences of his negligence unless there appears to be a contributing cause arising from conduct of the plaintiff which, in the eye of' the law, is reprehensible, such as unlawfulness or negligence. Can it be said that the generous and heroic performance of duty is reprehensible? It is according to settled and salutary rules that a recovery is denied one who voluntarily goes into a place of danger,, omitting to use present opportunities for circumspection and care, and failing to discharge his primary duty to regard his own safety. But if the reason of the law is its life, can it be said that the same judgment awaits one who is required to act under circumstances which leave no opportunity for circumspection, and in the discharge of the primary duty to regard the safety of others? Would it be considerately said that the duty imposed upon a railway company to keep a watchman at a crossing such as this would be discharged by keeping a watchman under instructions to care for those only who, if injured, might maintain actions against it ? The duty is to the public. The present case showed that the woman rescued was in great peril. Though called as a witness for the company, she testified as to her utter confusion at the time of the accident, and that she did not know whether she was swept from the track by the hand of the watchman or the end of the caboose. There was, therefore, a situation which called upon the watchman to act with the utmost promptness, and for that situation he was not responsible. No fact of legal significance distinguishes the present case from Railroad Co. v. Langendorf, and the conditions to the plaintiff’s recovery were properly stated, to the jury. To the authorities cited in that case may be added Gibney v. State of New York, 137 N. Y., 1, and Eckert v. Railroad Co., 57 Barb., 555.

Judgment affirmed.