Woodward v. Gray , 46 Ohio App. 177 ( 1933 )

This matter is presented upon rehearing granted by this court upon application therefor based upon error in the following instructions:

"To hold the defendant responsible in damages for any injury plaintiff sustained at that time, it must be shown by the preponderance of the evidence —

"1. That the child was in danger of being injured by the automobile of the defendant as it was traveling on the street, and that such danger to said child was caused or created by the negligence of the defendant;

"2. That in making the effort to rescue the child the plaintiff was not guilty of contributory negligence as that will be defined.

"These are the questions of fact which it will be your duty to determine from the evidence. If you find that the child was exposed to peril such as referred to, and that such being exposed to peril was caused by the negligent act of the defendant, you will then inquire whether the plaintiff, in attempting to cross the street to rescue the child, was guilty of contributory negligence. The law will not impute negligence to an effort to preserve human life, unless made under such circumstances as to constitute rashness in the judgment of prudent persons. If the plaintiff believed, and had good cause to believe, that she could save the life of the child without serious injury to herself, the law will not impute to her blame for making the effort."

There being no evidence that the defendant had placed the child in danger through his negligence, only one verdict could logically result.

It is claimed that this charge, in requiring the plaintiff to show that peril to the child was created by the negligence of the defendant, correctly states the law, approved by the weight of authority.

The text of 20 Ruling Case Law, page 132, Section 109, is a fair example of the statement of the law urged upon us as applicable to the case at bar.

We quote that section: "To justify a recovery for injuries received in an attempt to rescue another from a position of peril, it must be made to appear that the perilous situation of the person attempted to be rescued was produced by the act of the defendant. Thus, where the injuries complained of appear to have been sustained in an attempt to rescue another from an approaching train, it must be further shown that the railroad company was negligent in so operating the train as to imperil the person attempted to be rescued. Hence, there can be no recovery where a woman is struck by a passing freight train while she is standing on the railroad track in front of the train, waving to the engineer to stop, in order to prevent an accident to her mother, who, knowing that the train is approaching, is walking towards the track with the evident purpose of crossing it, and who, without looking to see how near the train is, steps on the track immediately in front of the locomotive and is killed. It has been asserted, however, in a number of cases that contributory negligence on the part of the person attempted to be rescued will not defeat a recovery. But no recovery should be allowed where it appears that the perilous situation was due to the fault of the rescuer, or was produced by the act of the person rescued. In other words, a person who places himself in peril is not guilty of negligence toward another which entitles the latter to recover for injury suffered in attempting to rescue him from his peril."

In the cases cited in support of this rule no agency was involved except that under the control of the party sought to be charged with responsibility for the injury to the rescuer.

This is true in Pennsylvania Co. v. Langendorf, 48 Ohio St. 316, 28 N.E. 172, 13 L.R.A., 190, 29 Am. St. Rep., 553, andPittsburg, Cincinnati, Chicago St. Louis Ry. Co. v. Lynch,69 Ohio St. 123, 68 N.E. 703, 63 L.R.A., 504, 100 Am. St. Rep., 658. Both of these were railroad cases and no other agency was involved other than the defendant railroad.

If, in the instant case, the street had been wholly unoccupied by other agencies which might have constituted a menace to the child, the charge would have been in conformity to the Ohio cases mentioned, because the defendant could only be involved.

It has been said that the negligence causing the peril must be the only proximate cause.

This wholly ignores the fact that negligence directed against the rescuer may be an intervening cause, without which the negligence of another would not have caused injuries to the rescuer.

Let us consider an entirely neutral cause as the agency creating the peril. Suppose a child is placed in danger upon a thoroughfare by reason of a large stone rolling down a hillside toward it. A mother rushes across the road to its rescue. She is injured by the negligence of the defendant. Will the rule contended for exclude the defendant from responsibility for his negligence toward her, simply because he was not responsible for the peril to her child? Such a conclusion seems hardly warranted either by cold reason or a desire to do substantial justice.

We have been cited to no authority in which the peril was caused by an outside agency, or the negligence of a third person, and in which the negligence of the defendant caused the injuries to the rescuer, where the rule contended for has been made applicable; nor are we able to find any controlling authority to this effect. The cases cited are those involving simply the acts of the defendant as affecting the safety of the one in peril.

Until we are presented with binding authority, we prefer to follow the dictates of reason and justice in holding that it is not necessary, in order to create liability, that the negligence of the defendant must have caused the peril to the one sought to be rescued.

If the peril was such as to justify an ordinarily prudent person in taking the risk, regardless of the origin of the peril, the defendant must answer for his negligence directly causing injuries to the rescuer.

This requires, however, that there must have been, upon the part of the defendant, a failure to use the care which a reasonably prudent person would have used to prevent injury to the rescuer, and, on the other hand, that the rescuer did use the care which a reasonably prudent person would use in face of the emergency presented to her.

We think the Supreme Court did not intend the cases noted to apply to such a case as is here involved, and we are firm in not extending their language in a manner which will be unreasonable and unjust.

We are now met with the contention of the defendant in error that the plaintiff in the trial court adopted a definite theory of the case which she has only abandoned in this court by attacking a charge which was in entire conformity to special charges presented by her and given by the trial court.

Reference to the record shows that the plaintiff below was evidently under the impression that the Langendorf case, supra, was applicable, and her cross-examination and entire attitude during the trial were calculated to mislead the court, as he himself evidently was misled. Can she claim prejudicial error in securing, both in special and general charges, a rule of law which in a court of error she first determines to be erroneous?

We indorse the rule as laid down in 2 Ohio Jurisprudence, 640, 642, Section 593: "Invited Error. A plaintiff in error cannot attack a judgment for errors committed by himself, nor for errors which he induced the court to commit, or into which he either intentionally or unintentionally misled the court and for which he is actively responsible. Under this principle a party cannot complain of any action taken or ruling made by the court in accordance with his own suggestion or request. * * * The rule as to invited error finds frequent application in questions relating to instructions. Thus, a party will not be heard to allege error in an instruction given at his own request or in one which is substantially in accordance with or similar to one requested by him, whether given in the general charge or at the request of the other party."

This leads us to the determination that we must adhere to the conclusion reached upon the first hearing of this cause, since, while error intervened on the issue of contributory negligence, there is no error in the charge upon the issue of negligence of which the plaintiff in error can now take advantage.

The judgment will be affirmed.

Judgment affirmed.

HAMILTON, P.J., and CUSHING, J., concur.