Landby v. New York, NH & HRR Co.

• Court: New York Supreme Court
• Citation: Landby v. New York, NH & HRR Co., 105 N.Y.S.2d 836, 199 Misc. 73 (N.Y. Sup. Ct. 1950)
• Decision Date: 11 December 1950
• Parties: Antoinette Landby, as Executrix of Edward G. Landby, Deceased, Plaintiff,<BR>v.<BR>New York, New Haven & Hartford Railroad Company et al., Defendants.

199 Misc. 73

Antoinette Landby, as Executrix of Edward G. Landby, Deceased, Plaintiff,

v.New York, New Haven & Hartford Railroad Company et al., Defendants.

December 11, 1950.

Block & Greene for plaintiff.

Edward R. Brumley for New York, New Haven & Hartford Railroad Company, defendant.

Clark, Gagliardi & King for Village of Mamaroneck, defendant.

COYNE, J.

At the close of plaintiff's case, and again at the close of the entire case, the court reserved decision on the motions of the respective defendants to dismiss the complaint. The jury having failed to reach an agreement, it is now incumbent upon the court to dispose of the motions. In making the present determination, it is not necessary to recite the evidence in detail. There is no dispute as to the facts surrounding the happening of the accident. Briefly, the decedent, an expert electrician, entered alone upon the private property of the defendant railroad company, when no one was nearby, presumably to remove a thin bare wire which was hanging from the high-tension live wire of the railroad company. It would appear that the thin bare wire had been thrown over the live wire by a child. Apparently, in an effort to remove the foreign wire, a contact occurred and decedent was electrocuted. Giving plaintiff the benefit of every favorable inference, under the proven facts, she has failed to establish actionable negligence on the part of either defendant.

As against the defendant, the New York, New Haven & Hartford Railroad Co., it was plaintiff's claim that the presence of the bare live wire constituted a grave hazard; that a situation existed where danger to others was imminent; and that the decedent went upon the property of the railroad company as a rescuer to eliminate the danger. At the trial, plaintiff relied upon the theory or doctrine of "Rescue". The determination of this motion must therefore rest upon the sufficiency of the evidence under the doctrine of "Rescue". It was the contention of the defendant railroad company that the decedent was not engaged in a rescue at the time of the unfortunate occurrence. The railroad company contended that he was a trespasser to whom no duty was owing except to refrain from intentional and wanton negligence.

The doctrine of rescue is applicable when one acts impulsively, oblivious of peril, to save or assist an injured person, or a person whose injury is imminent. The record in the present case is devoid of evidence showing imminent peril of injury to anyone at the time the fatal injuries were sustained by decedent. Actually, the evidence shows, as noted above, there was no one in the vicinity of the live bare wire, on the private right of way, when the accident occurred. The legal status of the decedent was that of a trespasser. It clearly appeared that the decedent gratuitously and voluntarily undertook to remedy a dangerous...