#### The Pittsburg, Cincinnati, Chicago & St. Louis Railway Co. *v.*Lynch.

*Injuries sustained in effort to save life of another—Action to recover on account of—Conditions for recovery—Rescuer not to be reckless—Question of negligence of person sought to be rescued.*

In an action to recover on account of injuries sustained in an effort to save human life the conditions upon which there may be a recovery are: That the person whose rescue is attempted must be in a position of peril from the negligence of the defendant, and the rescue must not be attempted under such circumstances, or in such a -manner, as to constitute recklessness. Those conditions appearing, a recovery will not be prevented by the fact that negligence of the person whose rescue is attempted contributed to his peril, nor by the fact that the plaintiff is an . employe of the defendant.

(No. 8267

Decided October 27, 1903.)

Error to the Circuit Court of Tuscarawas county.

The railway company for purposes of operating its road maintains ten tracks over the grade crossing of Third street in Dennison, that street being the princi*124pal thoroughfare of the village, about one-third of its-population of 4,000 residing upon one side of the tracks, and two-thirds on the other. On the twenty-fifth of April, 1900, while Lynch was acting as the company’s only watchman at the crossing, one of the tracks being occupied by p, passing train, and he engaged in looking after the safety of a number of school children who were about to cross the tracks, a caboose was, without warning, kicked over the crossing on another track at the rate of about eight miles an hour without any one on its forward end to warn persons-of its approach. Lynch observed a woman apparently unconscious of the approach of the caboose on the track on which it was approaching, and as he believed in danger of being run down by it. He attempted to give her a warning signal with his flag, but she did not observe the warning; he then hastened to her rescue, pushed her from the track, but was himself caught by the caboose and seriously injured. He had been at the crossing about three weeks, his duty being to see that teams'and footmen crossed the tracks in safety. The degree of care which he exercised could only be inferred from the circumstance of the accident. There was evidence tending to show that the caboose was sent over the street in the manner stated, and that the woman rescued was not exercising due care. Lynch brought suit in the court of common pleas to recover for his injury, alleging negligence of the company in the manner of operating the caboose, and in other respects; such negligence being alleged to be the cause of his injury. The company denied that it was negligent and pleaded that if Lynch was injured, it was the result of his own carelessness. The material question presented for decision is raised by the following portion of the charge:

*125“The plaintiff claims that he was struck by a car and injured while he was in the act of rescuing a woman from danger and saving her life. To hold the railroad company responsible in damages for this injury, it must be shown that the woman was in danger of being run over and injured by the approaching car, and that such danger was caused or created by the negligence of the railroad company, and that in making an effort to rescue the woman the plaintiff was not guilty of contributory negligence. These are questions of fact which it will be your duty to determine from the evidence.

“If you find that the peril to which the woman was •exposed was caused by such negligence of the company, you will then inquire whether the plaintiff, Lynch, in passing on to the track and attempting to rescue the woman was guilty of contributory negligence.

“The law will not impute negligence to an effort to preserve human life unless made under such circumstances as to constitute rashness in the judgment of prudent persons. If the plaintiff believed, and had good reason to believe, that he could save the life of the woman without serious injury to himself, the law will not impute to him blame for making the effort. The attending circumstances, as shown by the evidence, must be regarded; the alarm, the excitement and confusion, if you find any to have existed on said occasion, the uncertainty, if any, as to the proper move to be made; the promptness, if any, required, and what liability to mistake as to the best course to ■pursue. All these circumstances, as shown by • the evidence, may be considered by you in determining ■ whether, under the peculiar circumstances of this case, *126the plaintiff was in the exercise of ordinary care at the-time he received his injuries.”

There was a verdict in favor of the plaintiff which was followed by a judgment, and that judgment was-affirmed by the circuit court.

*Messrs. Dunbar & Sweeney*and *Mr. T. D. Healea,*for plaintiff in error.

First. Lynch knew that no other watchman was-employed to assist him, that the company had been in the habit of kicking cabooses over the crossing without, any one on in front to give warning or control the: same from that position; that the caboose ¡which struck him had been kicked and was approaching on track No. 2, and he had knowledge of all the other-conditions surrounding said crossing, the amount and character of the travel over the same, the methods in use by the company in the operation of cars thereover- and the number of said cars.

With this knowledge he not only assumed the ordinary risks and hazards incident, to his employment,, but, in addition, all the risks and hazards probably resulting from the methods then in use by the company in operating over said crossing, including the-number of watchmen employed thereat and the kicking of cabooses thereover, without any one being on in. front to give warning or control the same.

If the duty to take care of and rescue the woman,, then in such peril as would probably result and resulting from the negligent methods of the company, known to him, was imposed upon him by virtue of his. employment, then he assumed the risks and hazards, incident to the rescue, and is not entitled to recover. *Huda*v. *American Glucose Co.,*154 N. Y., 474; 40 L. R. A., 411; *Knisely*v. *Pratt,*148 N. Y., 372; 32 L. R. *127A., 367; 1 Shear. & Redf. on Neg. (5 ed.), p. 279,, sec. 186, p. 290.

Second. No recovery can be had by Lynch against, the company in this case unless it was not only guilty of negligence as charged, but also unless such negligence was actionable.

The undisputed facts show that the woman wasi guilty of contributory negligence; that her own negligent conduct would defeat a recovery in an action by her; hence the company’s negligence was not actionable in her favor.

The negligent acts charged against the company were obviously known to Lynch; hence are not actionable in his favor; such acts under the facts were not in law negligence.

Negligence of the person attempted to be rescued which is of such a character as would defeat a recovery in an action by him, defeats a recovery in an action by the rescuer unless there has been some particular act of negligence as to such rescuer. Watson on Dam. for Pers. Inj., sec. 107; *Donahoe*v. *Railroad Co.,*83 Mo., 560; *Sann*v. *Jones Mfg. Co.,*16 App. Div. (N. Y.), 252; 4 Am. & Eng. Ency. Law (1 ed.), pp. 37-8 and notes; 7 Am. & Eng. Ency. Law (2 ed.), p. 394 and notes.

Third. The conduct of the woman constituted such contributory negligence on her part as would defeat a recovery in an action by her. *Railway Co.*v. *Skiles,*64 Ohio St., 458; *Railway Co.*v. *Elliott,*28 Ohio St., 340; *Railway Co.*v. *Crawford,*24 Ohio St., 631; *Koester*v. *Railway Co.,*11 Circ. Dec., 283; 20 C. C. R., 475; *Railway Co.*v. *Lally,*7 Circ. Dec., 711; 14 C. C. R., 333.

Fourth. If the woman’s conduct constituted such contributory negligence on her part as would defeat a *128recovery in an action by her, then the conduct of the company was not in law negligence. *Railway Co.*v. *Terry,*8 Ohio St., 570; *Railway Co.*v. *Maurer,*21 Ohio St., 421; *Railway Co.*v. *Snyder,*24 Ohio St., 670.

Fifth. This case is clearly distinguished from the •case of *Railroad Co.*v. *Langendorf,*48 Ohio St., 316, in two essential particulars. In the latter the person rescued was a little child incapable of negligence, and the rescuer was a stranger and not an employe of the company.

In this case the person rescued was a woman, capable of negligence and negligent, and the rescuer, Lynch, was an employe and servant of the company, assuming that the woman was in peril.

*Mr. T. H. Loller*and *Mr. D. A. Hoilingsivorth,*for defendant in error.

At the close of the testimony, counsel for defendant submitted a number of propositions of law to be charged by the court most of which were adopted in the charge, and the rule of liability stated practically as laid down in *Railroad Co.*v. *Langendorf,*48 Ohio St., 316.

This, we think, instead of being prejudicial to the railway company, was unfair to the plaintiff, inasmuch as it was clearly his duty to fly to the rescue of any one in peril on the crossing, whether such peril was the result of negligence on the part of the company or not.

’ The charge put him in the attitude of a stranger, and his right to recover was put upon the ground that the woman he sought to rescue was exposed to danger by the negligence of the company. We still insist that this was not a necessary element in the case. The company owed him the duty of properly instructing him and also furnishing him with a sufficient number *129of assistants to adequately guard and protect the public at the crossing. He was in the discharge of a duty, and it was not for him to stop and weigh in his mind the negligence of the company, or whether or not the woman was guilty of contributory negligence in being where she was; when he saw the caboose coming down upon her it Avas his duty to act. It was enough for him to see that the caboose Avas not properly under control and was likely to collide with her. It was a danger signal that demanded his prompt attention. But the court took no account of this duty, the jury being plainly told that “to hold the railroad company responsible in damages for this injury, it must be shoAvn that the woman was in danger of being run over and injured by the approaching car, and that such danger was caused or created by the negligence of the railroad company.”

It is not disputed that the woman had a right to cross the tracks as and where she did. What duty did the company OAve her?

The court ansAvered this question in the charge by practically quoting from the opinion of *Railway Co.*v. *Schneider,*45 Ohio St., 695.

As between the Avoman and the railroad company on the question of their relative negligence, counsel do not contend that there was any error either in the admission of evidence or in the charge and direction of the court. It is practically conceded that, in a contest between them, it would be competent to show that the watchman provided by the company was inexperienced and uninstructed, that conditions at the crossing required more than one watchman to adequately guard the public, or to show any of the other alleged acts of negligence on the part of the company..

But we claim further, although this is not neces*130sary to an affirmance of the judgment by this court,, that the question of contributory negligence on the part of the woman was not one for the jury to consider. The rule in *Railroad Co.*v. *Langendorf,*48. Ohio St., 316, is simply the negligence of the railroad company, not whether or not she contributed to bringing about her perilous condition. Was it negligence on the part of the company to leave the crossing in charge of only one watchman, and he both inexperienced and Uninstructed? Was it negligence to “kick” the caboose over the crossing without warning and without any one in front to control it or keep a lookout for persons on the crossing?

The technical question of contributory negligence on her part might properly come up if an action were brought by her for damages against the railroad company or possibly, if a stranger had rushed upon the tracks to rescue her, and been injured, but we insist that it can not be made an element to affect the right of Lynch to recover in this action. It was not for’ him to inquire, when he saw the caboose coming down without proper control upon the imperiled woman,, whether or not, in addition to the apparent and certain negligence and wrong of the company, she was also guilty of some kind of negligence. It was his duty as watchman to act, not to reason why. Such a requirement would nullify effectually the humane rule established in *Railroad Co.*v. *Langendorf,*48 Ohio St., 316.

Did Lynch rashly and unnecessarily expose himself to danger? We think not. He saw this woman in peril. He had no time to consider what would be the best method of procedure, under the circumstances. *Railway Co.*v. *Eistler,*66 Ohio St., 326.

When a person, without his fault, is placed in a, *131situation of danger, he is not to be held to the exercise of the same care, and circumspection that prudent persons would exercise, where any danger is present; nor can it be said as a matter of law he is guilty of contributory negligence, because he fails to make the most judicious choice between hazards presented or would hare escaped injury if he had chosen differently. The question in such a case is not what a careful person would do, under ordinary circumstances, but what would he be likely to do or might reasonably be expected to do in the presence of such existing peril, and is one of fact for the jury. *Railway Co. w. Snyder,*55 Ohio St., 343; *Railroad Co.*v. *Langendorf,*48 Ohio St., 316.

As to the charge of the court, in regard to the negligence of the company, in placing an inexperienced man at this crossing, the general rule is, that if the master employs an inexperienced man, with knowledge of his inexperience, it is the master’s duty to instruct him as to his duty, and if his duty is dangerous, to especially call his attention to such dangers. This is the general rule where a man is seeking employment. In this case the plaintiff below, did not seek this position, but was placed there, by his superior officer, without any instructions as to his duties, further than general instructions to watch the crossing.

It was competent for the plaintiff below not only to show that there was an inadequate number of crossing watchmen employed, but, also, the inexperience of the crossing watchmen. Bailey’s Master’s Liability for Injuries to Servants, p. 68 and pp. Ill, 112 and 113; *Ridenour*v. *Mayo,*40 Ohio St., 11.

The negligence of the company was the *proximate cause*of Lynch’s injuries, and the fact that the negli*132gence of a third party contributed thereto is no defense. Watson on Damages, p. 158, and following: *Banning*v. *Banning,*12. Ohio St., 437; *Stetson*v. *Bank,*2 Ohio St, 167; *Berry*v. *State,*31 Ohio St., 219; *McHugh*v. *State,*42 Ohio St., 154; *Scovern*v. *State,*6 Ohio St., 288.

It was his duty as a watchman at this crossing to protect the public in traveling over the- same. That is what he was placed there for, and where one’s person is placed in a position of great peril by the negligence of another, the latter will be liable in damages for injury to a third party sustained in an effort to save the life of a person so imperiled, if the rescuer does not rashly and unnecessarily expose himself to danger. *Andseth*v. *Railway Co.,*70 Minn., 272; *Eckert*v. *Railway Co.,*43 N. Y., 503; *Railroad Co.*v. *Langendorf,*48 Ohio St., 316.

Shauck, J.

With respect to the general instructions given to the jury upon the subjects of negligence and the measure of recovery it'is sufficient to say that they were in substantial accordance with the familiar cases. But regarding the peculiar circumstances of the case, counsel for the company insist that the rescuer could not recover for the injury to him if the person rescued was in peril because of such contributory negligence on her part as would have prevented a recovery by her if she had been injured. The trial judge was not requested to give to the jury an instruction embracing that view of the law; but the verdict for the plaintiff appears to have been returned without regarding the evidence tending to show negligence on her part, and it is assumed that this was in accordance with the instruction given that the law will not impute negligence to one attempting, to save *133human life unless the attempt is made under such circumstances, or in such a manner, as to constitute rashness or recklessness. The jury had been told in another portion of the charge that there is no presumption of negligence against either party, and they perhaps understood the word impute to be used in its theological sense, and the instruction to signify that his right of action was not affected by her negligence. This portion of the charge was given in the language of this court in *Railroad Co.*v. *Langendorf,*48 Ohio St., 316, but it is insisted that the case cited and the present case are distinguishable by the two facts that the person whose rescue was there attempted was an infant incapable of negligence, while here she was chargeable with the consequences of her conduct; and Langendorf was a stranger to the company, while the plaintiff in the present case was its employe. Obviously the cases present the suggested differences of fact. Are those differences of legal significance? Apparent support is given to the view presented by counsel for the company by commentators whose conclusions have been affected by misconceptions of the three cases which they cite: *Railroad Co.*v. *Hiatt,*17 Ind., 102; *Donahoe v.*Railway Co., 83 Mo., 560; *Sann, Admx., v. The H. W. Johns Manufacturing Co.,*16 App. Div. (N. Y.), 252. In none of these cases was the judgment placed upon the ground that the person whose rescue was attempted had been guilty of negligence which was contributory merely, but that his was the only negligence which the case presented—that the defendant had not been negligent. The cases were determined upon the self-evident proposition that an action of negligence cannot be prosecuted successfully against one who has not been negligent. In the present casé the jury were distinctly instructed that their *134verdict must be for the company unless the evidence showed that it had been negligent as charged in the petition. The view of the law which was given to the jury in the present case was expressed by Grover, J., in *Eckert*v. *Railroad Co.,*43 N. Y., 502. It has been adopted in *Railroad Co.*v. *Langendorf,*and in many other cases. It is worthy of notice that while some of them were cases of the rescue, or attempted rescue, of infants, that fact has not been regarded as having legal significance, and the judgments have been placed upon grounds which are found in the. present case. If the view now urged by counsel is considered as unaffected by the decided cases, it must be rejected because of the impracticability of applying it. It invokes the principle of subrogation as the test of the plaintiff’s right to recover. If that principle should be adopted to determine his right to recover, for equal reason it should determine the amount of his recovery. By what process could it be ascertained what the extent of her injury would have been if the attempted rescue had failed? The view presented would lead to the conclusion that if the attempted rescue had failed and she had been injured without her fault, no right of action would have accrued to him because such right would have accrued to her. The insurmountable difficulties which would be met in an attempt to apply the suggested doctrine in an action under the statute for the benefit of the next of kin when the injuries of the rescuer prove fatal, need not be stated. It seems clear that the law will not admit of the suggested refinement.

Lynch’s right of action is not unfavorably affected by the fact that he was an employe of the company. Approbation of his conduct should not lead to a recovery in his favor contrary to the doctrines of the law *135upon the subject, but a brief consideration of those .doctrines will show that his recovery was proper. The evidence tended to show, and the charge required that it should establish, the negligence of the company. One is liable for the consequences of his negligence unless there appears to be a contributing cause arising from conduct of the plaintiff which, in the eye of the law, is reprehensible, such as unlawfulness or negligence. Can it be said that the generous and heroic performance of duty is reprehensible? It is according to settled and salutary rules that a recovery is denied one who voluntarily goes into a place of danger, omitting to use present opportunities, for circumspection and care, and failing to discharge his primary duty to regard his own safety. But if the reason of the law is its life, can it be said that the same judgment awaits one who is required to act under circumstances which leave no opportunity for circumspection, and in the discharge of the primary duty to regard the safety of others? Would it be considerately said that the duty imposed upon a railway company to keep a watchman at a crossing such as this would be discharged by keeping a watchman under instructions to care for those only who, if injured, might maintain actions against it? The duty is to the public. The present case showed that the woman rescued was in great peril. Though called as a witness for the company, she testified to her utter confusion at the time of the accident, and that she did not know whether she was swept from the track by the hand of the watchman or the end of the caboose. There was, therefore, a situation which called upon the watchman to act with the utmost promptness, and for that situation he was not-responsible. No fact of legal significance distinguishes the present case from *136*Railroad Go.*v. *Langendorf,*and the conditions to the plaintiff’s recovery were properly stated to the jury. To the authorities cited in that case may be added *Gibney*v. *State of New York,*137 N. Y., 1, and *Eckert*v. *Railroad*Co., 57 Barb., 555.

*Judgment affirmed.*

Burket, C. J., Spear, Davis, Price and Crew, JJ., concur.