Bond v. Baltimore

• Decision Date: 17 September 1918
• Citation: 82 W.Va. 557
• Court: West Virginia Supreme Court
• Parties: Benjamin Bond v. Baltimore & Ohio Railroad Company.

82 W.Va. 557

Benjamin Bond

v.Baltimore & Ohio Railroad Company.

Supreme Court of Appeals of West Virginia.

Submitted September 10, 1918.

Decided September 17, 1918.

1. Negligence Railroads Contributory Negligence Rescue of An-

other from Danger.

The right of a person to rescue another from danger of any kind, though voluntarily exercised, is as perfect and complete as amy other personal right, and the fact that the danger springs from a negligent act of a third person does not in any way affect or impair the right of rescue or the moral obligation to exercise it, (p. 560).

2. Same.

Such right and obligation are analogous to those of prevention of crime and protection of others from criminal injury. (p. 560).

3. Same Contributory Negligence Error of Judgment.

As the right is usually exercised on occasions of emergency, the actor ordinarily finds it necessary to determine his course of conduct, without time or opportunity for deliberation and mature consideration as to the danger to himself, attending his effort, wherefore the law does not hold him responsible for a mere error of judgment. (p. 561).

4. Same Proximate Cause.

The proximate cause of an injury inflicted in the effectuation of a rescue, by means of the negligence causing the danger and necessitating the rescue, is the negligent act causing both the danger and injury. (p. 561).

5. Same Imputed Negligence.

In such case, the antecedent negligence of the person rescued is not imputable to the person effecting the rescue. (p 563).

6. Damages Personal Injuries Mental Suffering.

An injury severe enough to cause pain, require professional treatment and inflict disability to perform labor for a week or two, justifies the giving of instructions authorizing an allowance for mental suffering in the assessment of damages. (p. 563).

7. Trial Instructions Evidence to Sustain,

An instruction stating an hypothesis having no basis in the evidence is properly refused, (p 563).

8. Appeal and Error-Instructions Harmless Error.

Though it is technically erroneous to give an instruction embodying applicable law in abstract form, it is not reversible error nor ground for a new trial. (p. 563).

Error to Circuit Court, Doddridge County.

Action by Benjamin Bond against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

W. S. Stuart, IT. L. Hammond, and McClintic, Mathews & Campbell, for plaintiff in error. J. Ramsey, for defendant in error.

poffenbarger, president:

Whether a person injured in rescuing another from danger occasioned by the negligence of the defendant, is precluded from right of recovery by his knowledge of the danger incident to his attempt to effect the rescue, is an inquiry raised on this writ of error to a judgment for $500.00 in favor of a person bearing such relations to the defendant and a third party, one Doris Smith. Other grounds relied upon for reversal are denial of proof of negligence and alleged errors in rulings upon instructions.

While Doris Smith was leisurely crossing a side-track and the main track of the defendant's railroad at its West Union station, in the customary and designed method of reaching the platform from which she intended to board one of its trains, after having purchased a ticket entitling her to carriage on said train, the station and platform being on opposite sides of the tracks, the train came in at a comparatively low rate of speed and would have run her down and probably killed her, but for the assistance rendered her by the plaintiff, according to the testimony of himself and other witnesses. He says he stepped down on the track, grabbed her and threw her toward the platform and was then struck by the pilot beam of the engine. Two other witnesses agree that the engine struck him., but not that he stepped off of the platform. They say he reached from the platform and caught her. Others say the engine struck the girl only and knocked her against him, in consequence of which he fell and his knee was injured by contact with a clinker in the cinder platform. The train was in sight when the girl started across the tracks, but she seems not to have seen or heard it. When she got to the main track and, then seeing the train, quickened her pace, it was within six or eight feet of her, and within a foot or two of her, when the engineer discovered her and the plaintiff grabbed her. The engineer was on the right-hand side of his engine, keeping a lookout, but the girl was approaching from the left-hand side and beyond his view partly because of a slight curve in the track. He had his engine under reasonable control and stopped it by means of the emergency brake within a short distance, he says, about, its length, but, other witnesses say, several feet more than that. He did not discover her until the engine was almost upon her. There was no evidence of a lookout on the other side by the fireman, and neither he nor Miss Smith testified in the case. The train could have been seen from a distance of 540 feet from the point at which she crossed the space between the tracks, about 250 feet from the waiting room of the station and about 150 feet from the platform.

Failure to maintain an adequate lookout covering the entire track, while running into the station, under the circumstances shown, was evidence of negligence. McGuire v. N. & W. R'y. Co., 70 W. Va. 538; Schoonover v. B. & O. Bail- road Co., 69 W. Va 560. This rule seems to be general and it is especially applicable here, in view of the necessity for the crossing of the tracks, by passengers, to obtain access to the cars from the platform, known to the servants and employees of the defendant company. If such a lookout had been maintained, the perilous situation of Miss Smith would

have been discovered in ample time to have prevented danger to tier, by stopping or cheeking the train. For some reason, she had evidently failed to observe it until it was almost upon her. Of course, she was guilty of negligence. She should have seen the train and hurried across or abstained from crossing, but this fact does not absolve the defendant from liability for its subsequent negligence. Schoonover v. B. & 0. Railroad Co., cited; Riedel v. Wheeling Traction Co., 63 W. Va. 522. There was evidence of its last chance to prevent injury, amply sufficient to warrant submission to the jury, of the issue as to its existence.

As to the relation between the negligent act and the person injured, this court seems to have acquiesced in the weight of authority. A person injured in effecting the rescue of another from danger occasioned by the negligence of a third party is not precluded from right of recovery, on the ground of his own immunity from danger, or his voluntary incurrence of risk. If his intervention was not a rash or clearly imprudent act, under the circumstances, he may recover. Walters v. Appalachian Bower Co., 75 W. Va. 676, 684; Schwartz v. Schull, 45 W. Va. 405, 414. An overwhelming "weight of authority denies that voluntary incurrence of risk in effecting a rescue from danger occasioned by negligence amounts to contributory negligence, unless the act of intervention was performed under such circumstances as would make it rash or reckless in the estimation of ordinarily prudent persons, Eckert v. L. I. Railroad Co.. 43 N. Y. 502, 3 Am. Rep. 721; Peyton v, T. & P. Railway Co., 41 La. Ann. 861, 17 Am. St. 430; Donahoe v. Wabash etc. R'y. Co., 83 Mo. 560; Corbin v. City of Philadelphia, 195 Pa, St. 461; 49 L. R. A. 715; Schroeder v. C. & A. Railroad Co., 108 Mo. 322; Pennsylvania Co. v. Langendorf, 48 O. St. 316; Pittsburg etc. Co. v. Lynch, 69 O. St. 123; L. & N. Railroad Co. v. Orr, 121 Ala. 489; Maryland Steel Co. v. Marney, 88 Md. 482; Connell v. Prescott, 20 Ont. App. Rep. (Can.), 49; Condiff v. Kansas City Ft. S. & G. Railroad Co., 45 Kan. 256; Central Railroad Co. v. Crosby, 74 Ga. 737; Spooner v. Railway Co., 115 N. Y. 22; Gibney v. State, 137 N. Y. 1; Linnehan v. Sampson, 126 Mass. 506; West Chicago St. R'y. Co. v. Liderman, 187 Ill. 463; Wright v. Atlantic etc. R. Co. 110 Va. 670; Adamson v. N. & W. R'y. Co., Ill Va. 556; Southern R, Co. v. Baptist, 114 Va. 723; Perpich v. Letonia Min. Co., 118 Minn. 508; Sherman & Redfield, Neg., Sec. 85b; Elliott, Railroads, Sec. 1265h; Thompson, Neg., Sees. 138, 198, 199, 1780 and 1831. These authorities further hold that contributory negligence on the part of the person rescued does not preclude right of recovery on the part of the rescuer. If, however, the latter has himself brought about the danger to the person rescued, or the negligence of such person is imputable to him, he cannot recover. Atlantic etc. R'y. Co. v. Leach, 91 Ga. 419; West Chicago St. R'y. Co. v. Liderman, 187 111. 463; DeMaliy v. M. L. & T. R. Co8. S. Co., 45 La. Ann. 1329.

There are a few decisions and some judicial expressions in dissenting opinions, to the contrary. Northern Railroad Co. v. Anderson, 25 U. C. C. (Can.), 301; Blair v. Grand Rapids Co., 60 Mich. 124; Mitchell, J., in Corbin v. Philadelphia, 195 Pa. St. 461. They deny any basis for the rule in legal principle or logic. If there is any right of intervention, under circumstances making it possible Without danger on the part of the rescuer, such right is certainly not denied or destroyed by conditions that would not preclude the exercise of other rights. The right of one person to render another assistance, when the latter is in danger from any cause, under conditions rendering it safe to do so, is as clear as his right to perform any other lawful act. Voluntariness does not vitiate or impair it, nor detract from it in any sense. That quality is inherent in most of our acts. We walk abroad for mere exercise, often unnecessary, or to gratify idle curiosity, as we have clear right to do, and, if injured by somebody's negligence in the exercise of such rights, we may recover. There is a...