Eckert v. Long Island Railroad Co. , 57 Barb. 555 ( 1870 )

By the Court, Gilbert, J.

The verdict of the jury established the fact, that the accident was caused by the negligence of the defendants, without any fault or negligence on the part of the deceased. The evidence is sufficient to sustain the verdict, so far as it involves the defendants’ negligence. But it was not disputed, or susceptible of dispute, that, but for the voluntary act of the deceased, which exposed him to imminent danger, the accident would not have happened. The question, therefore, is whether this act, under the circumstances of the case, was, in contemplation of law, one of negligence, and therefore precluded a recovery. Our opinion is, that it wras not. A person who is engaged in the performance of a legal duty, or of an act which, although not enjoined by positive law, yet which is meritorious and praiseworthy, or who is in the exercise of a legal right, and who, while so engaged, is injured through the negligence of another, is entitled to recover. It is not the cooperation of the act of the person injured with the negligence of the person causing the injury, that bars a recovery. To have that effect, the act must be an unlawful or negligent one. If lawful, and done with due care, prudence and caution, the defendant’s negligence alone makes him liable.

In the case before us, the deceased made a noble and praiseworthy effort to save a little child, whose life was in imminent peril from an approaching train of the defendants’, which was being run in a very negligent way. He succeeded in removing the child beyond danger, but in doing so lost his own life. ' The verdict of the jury frees him from all imputation of rashness, want of care and actual negligence of any kind. We are of opinion that the question was properly submitted to the jury, and that there is no rule- of law which requires us to set aside the verdict.

It has been frequently held, that the liability of a passenger carrier for negligence will be the same, although the injury resulting to the passenger therefrom, is occasioned by his own act, where the state of peril will justify it. Such an act the law deems a natural and prudent precaution to extricate a person from peril, for which the carrier would have been liable. The principle is thus enunciated by Lord Ellenborough, in Jones v. Boyce, (1 Stark. 492 :) “ If I place a man in such a situation that he must adopt a perilous alternative, I am responsible for the consequences.” This is equally good law and good sense, and has been declared by the Supreme Court of the United States, (Stokes v. Saltonstall, 13 Pet. 181,) by our own courts, (Eldridge v. Long Island Railroad Co., 1 Sand. 89; Buel v. N. Y. Central Railroad, 31 N. Y. Rep. 314;) and by the courts of some of our sister States, (Ingalls v. Bills, 9 Metc. 1; Galena Railroad Co. v. Yarwood, 15 Ill. Rep. 468; So. W. Railroad Co. v. Paulk, 24 Ga. Rep. 356.)

We can perceive no good reason for withholding the application of the principle to persons who are not passengers, but who have been placed in peril by the negligence of others, and are doing their best to extricate themselves from such peril, or to persons who, like the deceased, are injured while humanely, and without actual negligence, trying to save other lives thus placed in peril by the negligence of the defendant.

[Kings General Term, April 8, 1870.

We have looked into the exceptions, but find none of them good. Upon the principle suggested, the case was well tried, and the judgment and order denying a new trial should be affirmed, with costs.

/. X. Barnard, Gilbert, Tappen, and Pratt, Justices.]