Dixon v. New York, N.H. & H.R. Co.

• Decision Date: 25 November 1910
• Citation: 92 N.E. 1030,207 Mass. 126
• Parties: DIXON v. NEW YORK, N.H. & H. R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

207 Mass. 126

92 N.E. 1030

DIXON v. NEW YORK, N.H. & H. R. CO.

Supreme Judicial Court of Massachusetts, Bristol.

November 25, 1910

COUNSEL

J. W. Cummings and C. R. Cummings, for plaintiff.

F. S Hall and T. J. Feeney, for defendant.

OPINION

SHELDON J.

The jury could find on the evidence that Coombs was in a position of imminent peril, struggling to restrain a plunging horse upon or close to a track of the defendant upon which a train was approaching, and that the plaintiff came to his assistance for the purpose of rescuing him from the peril. The contention of the defendant that Coombs was endeavoring merely to save his master's property and that the plaintiff went upon the track for the sole purpose of assisting Coombs in this effort was for the jury to determine. It was not necessarily and as matter of law a trespass or a negligent act for the plaintiff to attempt to rescue Coombs from the impending danger even at the risk of his own life. It was for the jury to say whether under the existing circumstances the plaintiff's act was so rash and reckless as to preclude a finding that he was in the exercise of due care and was justified in going upon the track. This is the doctrine of Linnehan v Sampson, 126 Mass. 506, 30 Am. Rep. 692. And there is a great body of authority in other courts for the proposition that it may not be negligence for one not acting rashly or recklessly to expose himself voluntarily to great danger, even to the risk of life and limb, in order to rescue another from a like peril, and that such a voluntary exposure is not to be regarded as rash or reckless if there appears to be a fair chance of success, whether the person in danger is or is not a child or an aged or decrepit person, and even though the person attempting the rescue knows that it involves great hazard to himself without a certainty of accomplishing the intended rescue. The leading case is Eckert v. Long Island Railroad, 43 N.Y. 502, 3 Am. Rep. 721, and 57 Barb. (N. Y.) 555, the doctrine of which has been generally followed. Pittsburg, Cincinnati, Chicago & St. Louis Railway v. Lynch, 69 Ohio St. 123, 68 N.E. 703, 63 L. R. A. 504, 100 Am. St. Rep. 658. Pennsylvania Co. v. Lagendorf, 48 Ohio St. 316, 28 N.E. 172, 13 L. R. A. 190, 29 Am. St. Rep. 553; Becker v. Louisville & Nashville Railroad, 110 Ky. 474, 61 S.W. 997, 53 L. R. A. 267, 96 Am. St. Rep. 459; Gibney v. State, 137 N.Y. 1, 33 N.E. 142, 19 L. R. A. 365, 33 Am. St. Rep. 690; Manzella v. Rochester Railway, 105 A.D. 12, 93 N.Y.S. 457; Corbin v. Philadelphia, 195 Pa. 461, 45 A. 1070, 49 L. R. A. 715, 78 Am. St. Rep. 825; West Chicago Street Railway v. Liderman, 187 Ill. 463, 58 N.E. 367, 52 L. R. A. 655, 79 Am. St. Rep. 226; Donahoe v. Wabash, St. Louis & Pacific Railway, 83 Mo. 560, 53 Am. Rep. 594; Mobile & Ohio Railroad v. Ridley, 114 Tenn. 727, 86 S.W. 606; Louisville & Nashville Railroad v. Orr, 121 Ala. 489, 26 So. 35; Peyton v. Texas & Pacific Railway, 71 La. Ann. 861, 6 So. 690, 17 Am. St. Rep. 430; Condiff v. Kansas City, Ft. Scott & Gulf Railroad, 45 Kan. 256, 25 P. 562. Other cases are collected in 29 Cyc. 523, 524, in 7 Am. & Eng. Encyc. of Law (2d Ed.) 394, 395, and in the note to Mobile & Ohio Railroad v. Ridley (Tenn.) 4 Am. & Eng. Ann. Cas. 925, 928.

It follows that the defendant's first request for instructions was properly denied. It is true, as was held in Linnehan v. Sampson, 126 Mass. 506, 30 Am. Rep. 692, and in many of the other cases above cited, that it is for the jury to say, upon all the circumstances, including the existing emergency and the need of immediate action under which they may find that the plaintiff acted, whether in fact his conduct was that of a reasonably prudent man; and it may be that the judge in his charge did not go far enough in requiring the jury, upon this issue, only to find whether the plaintiff 'saw and as a reasonable man believed that Coombs was in imminent danger of his life,' and 'believed that he could rescue Coombs and at the same time avoid danger to himself.' But it is not clear that this question was intended to be saved; it has been argued by the defendant; and we need not consider it.

But it is necessary in this case, as in all similar actions, that negligence on the part of the defendant or its servants should be shown, even though the plaintiff was himself free from all blame. Hirschman v. Dry Dock Railroad, 46 A.D. 621, 61 N.Y.S. 304; De Mahy v. Morgan's Louisiana Co., 45 La. Ann. 1329, 14 So. 61; Spooner v. Delaware, Lackawanna & Western Railroad, 115 N.Y. 22 21 N.E. 696; Evansville & Crawfordsville Railroad v. Hiatt, 17 Ind. 102; Thomason v. Southern Railway, 113 F. 80, 51 C. C. A. 67. In such a case as this, however, it is enough to hold the defendant if there was negligence on its part towards either Coombs or the plaintiff. Maryland Steel Co. v. Marney, 88 Md. 482, 42 A. 60, 42 L. R. A. 842, 71 Am. St. Rep. 441; Saylor v. Parsons, 122 Iowa, 679, 98 N.W. 500, 64 L. R. A. 542, 101 Am. St. Rep. 283; Donahoe v. Wabash, St. Louis & Pacific Railway, 83 Mo. 560, 53 Am. Rep. 594. Its negligence towards Coombs will be treated as directly inducing the attempt to rescue him and thereby causing the injury to the plaintiff. Such negligence could be found if the defendant was running its train in a manner likely to cause injury to any one properly in that vicinity. That was the only negligence that was shown in many of the cases already referred to. In our opinion there was such evidence here. This train was coming into the defendant's freightyard past an open space about 40 feet wide, arranged, paved and adapted by the defendant for use as a driveway by teams coming to the yard to unload cars standing upon the tracks that bordered its sides. Coombs and the plaintiff, like all other teamsters having occasion to come to this yard to receive freight for their employers, were invited by the defendant to come to...