Saylor v. Parsons

• Decision Date: 10 February 1904
• Citation: 98 N.W. 500,122 Iowa 679
• Parties: S. W. SAYLOR, Appellant, v. G. W. PARSONS AND PARSONS, RICH & COMPANY
• Court: Iowa Supreme Court

98 N.W. 500

122 Iowa 679

S. W. SAYLOR, Appellant, v. G. W. PARSONS AND PARSONS, RICH & COMPANY

Supreme Court of Iowa, Des Moines

February 10, 1904

Appeal from Jasper District Court.--HON. A. R. DEWEY, Judge.

ACTION for damages. The plaintiff appeals from a judgment on a directed verdict.

Affirmed.

E. J Salmon, N. T. Guernsey and Graham & Morgan for appellant.

W. O McElroy and C. O. McLain for appellees.

OPINION

LADD J.

The plaintiff had been employed by Parsons, Rich & Co. as a blacksmith. That firm had concluded to enlarge its factory, and on the 11th day of November, 1898, directed plaintiff, with others, to assist in removing a one-story addition thereto. This addition was about twenty-four feet square, with brick walls running against, not into, the main building. After the roof had been removed they proceeded to take down the north and east walls. The south wall was to be extended as a part of a larger building. After a portion of the east wall had been removed, the other employes went to work elsewhere, but plaintiff continued until the brick had been taken away within a few feet of the ground. He then took out a window frame, and in returning through a doorway in the east wall after setting it aside, noticed that Parsons, who had been overseeing the work, and also working with the men, bent over next to the north wall undermining it at the bottom with a five-foot iron bar. He was but twelve or fourteen feet distant, and the wall appeared to be toppling over toward him. Believing Parsons to be in imminent danger, plaintiff seized a piece of scantling two inches by four or six inches and about seven feet long, rushed over and threw it against the wall about two feet from the top, and over a window, to prevent the wall from falling. Parsons immediately rose up and withdrew without serious injury. But the brick against which plaintiff's prop had been placed gave way, letting plaintiff forward, and he was caught by the falling wall, and his leg so crushed that amputation was necessary. The wall was then about ten feet high at one end and eight feet at the other, with an aperture for a window about two and one-half feet wide and five feet high. Parsons was about three or four feet west of this window. Subsequently, in expressing his sympathy with plaintiff, he said to him that but for his coming as he did, he (Parsons) might have been crushed and killed. Upon the conclusion of the evidence in behalf of plaintiff tending to establish facts as stated, the jury, on motion, was directed to return a verdict for the defendants.

I. A person who seeks to rescue another from imminent danger, thereby imperiling his own life, is not necessarily guilty of contributory negligence. "The law has so high a regard for human life that it will not impute negligence in an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons." Eckert v. Ry., 43 N.Y. 502 (3 Am. Rep. 721.) In Cottrill v. Ry., 47 Wis. 634 (3 N.W. 376, 32 Am. Rep. 796) an engineer had continued at his post in order to save life, and the court, in reversing the finding of a jury that he was negligent in not jumping from the engine, said: "According to the common appreciation of human conduct and character, this evidence presents an example of heroic bravery and fidelity of duty at the post of danger most praiseworthy and commendable, and an occurrence worthy of lasting record in the book of heroic deeds. * * * * To hold as a matter of law in this case that the deceased was guilty of want of ordinary care and prudence, as the engineer in charge of the locomotive and train, in not jumping off at this crisis and abandoning his engine, from the mere apprehension of uncertain danger, would make a legal precedent very dangerous to the railway service in life and property, and by which it would be exceedingly difficult, if not impossible, to distinguish the cases and the circumstances in which it would or would not be the duty of an engineer to jump off and desert his engine, or to determine in point of time when he should do so, and the necessity or prudence for him to do so." See, also, Central Ry. v. Crosby, 74 Ga. 737 (58 Am. Rep. 463). Cases involving the rescue of adults as well as infants from imminent danger are numerous, and the principle seems to be well established that he who springs to the rescue of another, encountering great danger to himself, is not to be denounced as negligent, but that the propriety of his conduct is to be left to the judgment of the jury. Pennsylvania Co. v. Langendorf, 48 Ohio St. 316 (28 N.E. 172, 13 L.R.A. 190, 29 Am. St. Rep. 553); Linnehan v. Sampson, 126 Mass. 506 (30 Am. Rep. 692); Becker v. Ry., 22 Ky. L. Rptr. 1893, (61 S.W. 997, 53 L.R.A. 267); Maryland Steel Co. v. Marney, 88 Md. 482 (42 A. 60, 42 L.R.A. 842, 71 Am. St. Rep. 441); Thompson's Com. on Negligence, section 198. See Liming v. Ill. Cen. R. Co., 81 Iowa 246, 47 N.W. 66.

II. But negligence on the part of the defendant either toward the person rescued or the party making the rescue after the attempt has been begun is essential to a recovery in all cases. This was illustrated in Evansville & Crawford R Co. v. Hiatt, 17 Ind. 102, where a son undertook to rescue his father from in front of a moving train on a bridge, and recovery was denied for that the employes of the railroad company did not observe either in time to avoid a collision. In Donahoe v. Ry. Co., 83 Mo. 560 (53 Am. Rep. 594) the court, in considering the liability of the company for injury...