Eckert v. . the Long Island Railroad Co.

The plaintiff's intestate was not placed in the peril from which he received the injury resulting in his death, by any act or omission of duty of the defendants, its servants, or agents. He went upon the track of the defendant's road in front of an approaching train, voluntarily, in the exercise of his free will, and while in the full possession of all his faculties, and with capacity to judge of the danger. His action was the result of his own choice, and such choice not compulsory. He was not compelled, or apparently compelled, to take any action to avoid a peril, and harm to himself, from the negligent or wrongful act of the defendant, or the agents in charge of the train. The plaintiff's rights are the same as those of the intestate would have been, had he survived the injury and brought the action, and must be tested by the same rules; and to him and consequently to the plaintiff, the maxim volenti non fit injuria applies. It is a well established rule, that no one can maintain an action for a wrong, when he consents or contributes to the act which occasions his loss. One who with liberty of choice, and knowledge of the hazard of injury, places himself in a position of danger, does so at his own peril, and must take the consequences of his act. This rule has been applied to actions for torts as well as to actions upon contract, under almost every variety of circumstance.

Whenever there has been notice of the danger, and freedom of action, the injured party has been compelled to bear the consequences of the action irrespective of the character and degree of negligence of other parties. (Gould v. Oliver, 2 Scotts. N.R., 257; Ilott v. Wilkes, 3 B. Ald., 311;Slagan v. Slingerland, 2 Caines, 219; Per MARVIN, J., inCorwin v. N.Y. and E.R.R. Co., 3 Ker., 42; per COWEN, J., inHatfield v. Roper, 21 W.R., 620.) The doctrine applicable to voluntary payments of money not recoverable by law grows out of this rule of law, and the rules governing in cases of contributing negligence of the injured party is nearly allied to, if not an outgrowth of the maxim volenti non fit injuria.

Whether the defendant was or was not guilty of negligence, or whatever the character and degree of the culpability of the defendant and its servants is not material. The testator had full view of the train and saw, or could have seen, the manner in which it was made up, and the locomotive attached, and the speed at which it was approaching, and, if in the exercise of his free will, he chose for any purpose to attempt the crossing of the track, he must take the consequence of his act. The defendant may have been running the train improperly, and perchance illegally, and so as to create a legal liability in respect to any one sustaining loss solely from such cause, but the company is not the insurer of, or liable to those who, of their own choice and with full notice, place themselves in the path of the train and are injured.

It is not the law that the co-operating act of the injured party must be culpable or wrong in intention. It may be merely negligence or the result of the free exercise of the will. (Per BEARDSLEY, J., Tonawanda R.R. Co., v. Munger, 5 Denio, 255.) The rescue of the child from apparent imminent danger was a praiseworthy act and entitled the plaintiff to the favorable consideration of the court and to a lenient and liberal interpretation and application of the rules of law in her behalf. But the principles of law cannot yield to particular cases.

The act of the intestate in attempting to save the child was lawful as well as meritorious, and he was not a trespasser upon the property of the defendant, but it was not in the performance of any duty imposed by law, or growing out of his relation to the child, or the result of any necessity. There is nothing to relieve it from the character of a voluntary act, the performance of a self-imposed duty, with full knowledge and apprehension of the risk incurred. Evansville R.R. Co. v. Hyatt (17 Ind., 102), is in circumstance somewhat like the case before us, and the decision is in accord with the views herein expressed.

I am of the opinion that the judgment of the Supreme Court and of the City Court of Brooklyn should be reversed and new trial granted, costs to abide event.

FOLGER. J., concurred in the foregoing opinion.

Judgment affirmed.