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thoroughfare of the village; about one, gence. The law will not impute negligence third of its population of 4,000 residing to an effort to preserve human life unless upon one side of the tracks, and two thirds made under such circumstances as to constion the other. On the 25th of April, 1900, tutc rashness in the judgment of prudent while Lynch was acting as the company's persons. If the plaintiff believed, and had only watchman at the crossing, one of the good reason to believe, that he could save tracks being occupied by a passing train, the liie of the woman without serious inand he engaged in looking after the safety jury to himself, the law will not impute to of a number of school children who were him blame for making the effort. The atabout to cross the tracks, a caboose was, tending circumstances, as shown by the eviwithout warning, kicked over the crossing dence, must be regarded; the alarm, the exon another track at the rate of about 8 citement and confusion, if you find any to miles an hour, without anyone on its for- have existed said occasion; the unward end to warn persons of its approach. certainty, if any, as to the proper move to Lynch observed a woman apparently un-be made; the promptness, if any, required, conscious of the approach of the caboose on and what liability to mistake as to the best the track on which it was approaching, and, course to pursue. All these circumstances, as he believed, in danger of being run down as shown by the evidence, may be conby it. He attempted to give her a warning sidered by you in determining whether, sigual with his flag, but she did not observe under the peculiar circumstances the warning He then hastened to her case, the plaintiff was in the exercise of rescue, and pushed her from the track, but ordinary care at the time he received his was himself caught by the caboose and injurics." There was a verdict in favor of seriously injured. He had been at the the plaintiff, which was followed by a judgcrossing about three weeks, his duty being ment, and that judgment was affirmed by to see that teams and footmen crossed the the circuit court. tracks in safety. The degree of care which he exercised could only be inferred from the Messrs. Dunbar & Sweeney and T. D. circumstance of the accident. There was Healea for plaintiff in error. evidence tending to show that the caboose Messrs. T. H. Loller and D. A. Holwas sent over the street in the manner lingsworth for defendant in error. stated, and that the woman rescued was not exercising due care. Lynch brought suit Shauck, J., delivered the opinion of the in the court of common pleas to recover for court: his injury, alleging negligence of the com- With respect to the general instructions pany in the manner of operating the given to the jury upon the subjects of neglicavoose and in other respects; such negligence and the measure of recovery, it is sufgence being alleged to be the cause of his ficient to say that they were in substantial injury. The company denied that it was accordance with the familiar cases. But negligent, and pleaded that, if Lynch was regarding the peculiar circumstances of the injured, it was the result of his own care case, counsel for the company insist that lessness. The material question presented the rescuer could not recover for the injury for decision is raised by the following to him if the person rescued was in peril beportion of the charge: “The plaintiff cause of such contributory negligence on claims that he was struck by a car and in her part as would have prevented a recovery jured while he was in the act of rescuing a by her if she had been injured. The trial woman from danger, and saving her life. judge was not requested to give to the jury To hold the railroad company responsible an instruction embracing that view of the in damages for this injury, it must be law, but the verdict for the plaintiff apshown that the woman was in danger of be- pears to have been returned without regarding run over and injured by the approaching ing the evidence tending to show neglicar, and that such danger was caused or gence on her part; and it is assumed that created by the negligence of the railroad this was in accordance with the instruction company, and that, in making an effort to given that the law will not impute negiirescue the woman, the plaintiff was not gence to one attempting to save human life guilty of contributory negligence. These unless the attempt is made under such are questions of fact which it will be your circumstances or in such a manner

as to duty to determine from the evidence. If constitute rashness or recklessness. The you find that the peril to which the woman jury had been told in another portion of was exposed was caused by such negligence the charge that there is no presumption of of the company, you will then inquire negligence against either party, and they whether the plaintiff, Lynch, in passing on perhaps understood the word "impute” to be to the track and attempting to rescue the used in its theological sense, and the inwoman, was guilty of contributory negli-Istruction to signify that his right of action


was not affected by her negligence. This / her injury would have been if the attempt. portion of the charge was given in the ed rescue had failed? The view presented language of this court in Pennsylvania Co. would lead to the conclusion that, if the at. v. Langendorf, 48 Ohio St. 316, 13 L. R. A. tempted rescue had failed, and she had been 190, 29 Am. St. Rep. 553, 28 N. E. 172, but injured without her fault, no right of action it is insisted that the case cited and the would have accrued to him, because such present case are distinguishable by the two right would have accrued to her. The infacts that the person whose rescue was surmountable difficulties which would be there attempted was an infant incapable of met in an attempt to apply the suggested negligence, while here she was chargeable doctrine in an action under the statute for with the consequences of her conduct, and the benefit of the next of kin when the injuLangendorf was a stranger to the company, ries of the rescuer prove fatal need not be while the plaintiff in the present case was stated. It sceins clear that the law will not its employee. Obviously the cases present admit of the suggested refinement. the suggested differences of fact. Are Lynch's right of action is not unfavorably those differences of legal significance? Ap- affected by the fact that he was an employee parent support is given to the view pre- of the company. Approbation of his con. sented by counsel for the company by com- duct should not lead to a recovery in his mentators whose conclusions have been af- favor contrary to the doctrines of the law fected by misconceptions of the three cases upon the subject, but a brief consideration which they cite: Evansville & C. R. Co. v. of those doctrines will show that his recorHiatt, 17 Ind. 102; Donahoe v. Wabash, St. ery was proper. The evidence tended to L. & P. R. Co. 83 Mo. 560, 53 Am. Rep. 594; show, and the charge required that it should Sann v. H. W. Johns Mfg. Co. 16 App. Div. establish, the negligence of the company. 252, 44 N. Y. Supp. 641. In none of these One is liable for the consequences of his neg.

was the judgment placed upon the ligence unless there appears to be a cou. ground that the person whose rescue was attributing cause arising from conduct of the tempted had been guilty of negligence which plaintiff, which, in the eye of the law, is repwas contributory merely, but that his was rehensible, such as unlawfulness or neglithe only negligence which the case present- gence. Can it be said that the generous and ed,—that the defendant had not been negli- heroic performance of duty is reprehensible! gent. The cases were determined upon the It is according to settled and salutary rules self-evident proposition that an action of that a recovery is denied one who volunricgligence cannot be prosecuted successfully tarily goes into a place of danger, omitting against one who has not been negligent. In to use present opportunities for circumspecthe present case the jury were distinctly in- tion and care, and failing to discharge his structed that their verdict must be for the primary duty to regard his own safety. But coinpany unless the evidence showed that it if the reason of the law is its life, can it be had been negligent as charged in the peti- said that the same judgment awaits one tion. The view of the law which was given who is required to act under circumstances to the jury in 'the present case ex- which leave no opportunity for circumspecpressed by Grover, J., in Eckert v. Long Is- tion, and in the discharge of the primary land R. Co. 43 N. Y. 502, 3 Am. Rep. 721. duty to regard the safety of others? Would It has been adopted in Pennsylvania Co. v. it be considerately said that the duty im. Langendorf, and in many other cases. It is posed upon a railway company to keep a worthy of notice that while some of them watchman at a crossing such as this would . were cases of the rescue, or attempted res- be discharged by keeping a watchman under cue, of infants, that fact has not been re- instructions to care for those only who, if garded as having legal significance, and the injured, might maintain actions against it? judgments have been placed upon grounds The duty is to the public. The present case which are found in the present case. If the showed that the woman rescued was in view now urged by counsel is considered as great peril. Though called as a witness for unaffected by the decided cases, it must be the company, she testified to her utter conrejected because of the impracticability of fusion at the time of the accident, and that applying it. It invokes the principle of she did not know whether she was swept subrogation as the test of the plaintiff's from the track by the hand of the watchman right to recover. If that principle should or the end of the caboose. There was there be adopted to determine his right to recover, fore a situation which called upon the for equal reason it should determine the watchman to act with the utmost promptamount of his recovery. By what process ness, and for that situation he was not recould it he ascertained what the extent of 'sponsible. No fact of legal significance dis


tinguishes the present case from Pennsylva- | Rep. 690, 33 N. E. 142, and Eckert v. Long nia Co. v. Langendorf, and the conditions Island R. Co. 57 Barb. 555. to the plaintiff's recovery were properly Judgment affirmed, stated to the jury. To the authorities cited in that case may be added Gibney v. State. Burket, Ch, J., and Spear, Davis, 137 N. Y. 1, 19 L. R. A. 365, 33 Am. St. Crew, and Price, JJ., concur.

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Samuel S. PALMER et al., Appts., After Dr. Stewart had testified as a wit

ness that, in his opinion, the curvature of WARREN STREET RAILWAY COM- the spine resulting from the injury would PANY.

be permanent, he was asked, How, if at all,

would that affect her ability to perform la(206 Pa. 574.)

bor? This question was objected to as in

competent and irrelevant, and the objection 1. Negligence on the part of a street

was sustained. railway company is presumed where a car becomes unmanageable on a grade, and

The further facts necessary to an underbegins to descend so as to imperil the safety standing of the case sufficiently appear in of passengers on a following car.

the opinion. 2. That passenger jumps from a Messrs. Allen & Son, for appellants: street car to avoid injury by an im

When the degree of care varies according pending collision with another car does not deprive him of the benefit of the presumption to the circumstances, the question of negli that the collision was the result of the car. gence is always for the jury. rier's negligence.

Gates v. Pennsylvania R. Co. 154 Pa. 566, 3. A passenger carrier is bound to ex

26 Atl. 598. ercise the highest degree of practi

As to whether the question of contribucal care and diligence that is consistent with the mode of transportation adopted.

tory negligence is one of law or fact, see 4. A passenger carrier bound

Beach, Contrib. Neg. || 447-452, also 3d make use of such cars and appliances cd. | 445. as have proved by experience to be most If there is any evidence which, alone, efficacious in known use in the same busi

would justify an inference of the disputed 5. Negligence on the part of a street facts on which plaintiff's right to recover

railway company is not shown by the depends, it must be submitted to the jury. fact that cars are allowed to approach each Bucklin v. Davidson, 155 Pa. 362, 26 Atl. other from opposite directions on the same 643; Lerch v. Bard, 153 Pa. 573, 26 Atl. track.

236; Miller v. Bealer, 100 Pa. 583; Fisher 6. A passenger is not guilty of contributory negligence in jumping from a

v. Monongahela C. R. Co. 131 Pa. 292, 18 moving car to avoid an impending collision, Atl. 1016. if he acts from a well-grounded fear of im- Though there is no doubt as to the existminent danger.

ence of the facts of a case, yet, if there is 7. A physician who has testified as to substantial doubt as to the reasonable or

the permanency of an injury received by a passenger through the carrier's negli- natural inferences to be drawn from these gence may be permitted to give his opinion facts, they should be submitted to the jury. as to how the injury will affect ability to Neslie v. Second & Third Streets Pass. R. perform labor.

Co. 113 Pa. 300, 6 Atl. 72; McKee v. Bid(July 9, 1903.)

well, 74 Pa. 218; Crissey v. Hestonville, M.

& F. Pass. K. Co. 75 Pa. 83; Conyngham v. the Court of Common Pleas for Warren 573; Muckinhaupt v. Erie R. Co. 196 Pa. County in favor of defendant in an action 213, 46 Atl. 364; Elston v. Delaware, L. & brought to recover damages for personal in. W. R. Co. 196 Pa. 596, 46 Atl. 938. juries alleged to have been caused by defend- Where an injury occurs to a passenger in ant's negligence. Reversed.

consequence of something done or not done, NOTE,--As to contributory negligence in at- Lincoln Rapid Transit Co. v. Nichols, 20 L. R. tempting to escape from sudden danger, see

A. 833 ; Garrity v. Detroit Citizens' Street R. also cases in notes to Louisville, N. A. & C. Co. 37 L. R. A. 529; and Baltimore Consol. R. R. Co. v. Lucas, 6 L. R. A. 195 ; Cody v. New

Co. v. Armstrong, 54 L. R. A. 424. York & N. E. R. Co. 7 L. R. A. 843; and Mitch

As to presumption of negligence from hapell v. Southern P. R. Co. 11 L. R. A. 130; also pening of accident on street car, see Cassady Vallo v. United States Exp. Co. 14 L. R. A. v. Old Colony Street R. Co. ante, 285, and 743 : Blackwell v. Moorman, 17 L. R. A. 729 ;

cases in footnote thereto.


connected with the appliances of transpor- electric car of the defendant company. As tation, there arises a presumption of negli. it approached an upgrade, a

car with gence which the carrier is required to rebut. trailer attached was seen descending and

Kepner v. Harrisburg Traction Co. 183 coming towards it on the same track. The Pa. 31, 38 Atl. 416; Flening v. Pittsburgh, brake chain on the descending car had brokC. C. & St. L. R. Co. 158 Pa. 135, 22 L. R. A. en, and the motorman was unable to control 351, 38 Am. St. Rep. 835, 27 Atl. 858; it. The motorman of the car on which the O'Connor 1. Scranton Traction Co. 180 Pa. plaintiff was riding, seeing that a collision 444, 36 Atl. 866; Green v. Pacific Lumber was inevitable, stopped his car, and, having Co. 130 Cal. 435, 62 Pac. 747 ; Gannon v. reversed the current, started it backwards. New York, N. H. & H. R. Co. 173 Mass. 40, The other cars were gaining on it, until it 43 L. R. A. 833, 52 N. E. 1075.

seemed that the collision could not be avoidIt is not necessary that the evidence of ed, and a number of the passengers on the negligence should be direct and positive, car with Mrs. Palmer, including herself, where the injury is to a passenger in a pub- juinped from it just before the cars collided. lic conveyance.

For the injuries sustained in jumping from Dixey y. Philadelphia Traction Co. 180 the car this suit was brought. The case Pa. 404, 36 Atl. 924; Clow v. Pittsburgh was submitted to the jury under what the Traction Co. 158 Pa. 410, 27 Atl. 1004; Iron appellants regard as erroneous instructions, R. Co. v. Mowcry, 36 Ohio St. 418, 38 Am. and, the verdict having been for the defendRep. 597.

ant, this appeal was taken. If a person should leap from a

car in

The real error complained of is the trial which he is a passenger under the influence judge's instruction to the jury that there of a well-grounded fear that a fatal colli- was no presumption of the defendant's negsion is about to take place, his claim against ligence. Upon this point he said, in his the company for the injury he may suffer general charge: “Now, gentlemen of the will be as good as if the same mischief had jury, the first question which we submit to been done by the apprehended collision it. you is this: From all of the evidence on self.

the part of the plaintiffs and on the part of Pennnsylvania R. Co. v. Aspell, 23 Pa. the defendant, was the defendant guilty of 147, 62 Am. Dec. 323; 7 Am. & Eng. Enc. any negligence in the matter? If the deLaw, 2d ed. pp. 399, 400; Union P. R. Co. fendant was not guilty of negligence, then v. McDonald, 152 U. S. 262, 38 L. ed. 434, there can be no recovery. Where an acci14 Sup. Ct. Rep. 619; Pennsylvania Teleph. dent happens and an injury takes place by Co. v. Vurnau, 2 Monaghan (Pa.) 645, 15 a collision, and a passenger is injured in the Ati. 624; Cody v. New York & N. E. R. Co. collision, there is a presumption of negli151 Mass. 462, 7 L. R. A. 843, 24 N. E. 402; gence; and, had Mrs. Palmer remained on Buel v. New Yorke C. R. Co. 31 N. Y. 314, the car and been injured in the collision 38 Am. Dec. 271; Beach, Contrib. Neg. 3d which occurred, there would have been a preed. || 40, 41; Pittsburgh, B. & W. R. Co. v. sumption of negligence on the part of the Rohrman (Pa.) 12 Am. & Eng. R. Cas. 176; company, which the company could rebut by Willis v. Second Ave. Traction Co. 189 Pa. testimony.” He added in the same connec430, 42 Atl. 1; Hookey v. Oakdale, 5 Pa. tion: “But in this case we say to you, it Super. Ct. 404; Sprouls v. Morris Twp. 179 is incumbent upon the plaintiffs to show Pa. 219, 36 Atl. 242; Cannon v. Pittsburg negligence, and convince you of negligence.” Traction Co. 194 Pa. 159, 44 Atl. 1089; Sto- This instruction that there was no presumprer v. Pennsylvania R. Co. 195 Pa. 616, 46 tion of the company's negligence was reAtl. 132; Pennsylvania R. Co. v. Lyons, 129 peated in the court's answers to plaintiff's Pa. 113, 15 Am. St. Rep. 701, 18 Atl. 759. first and defendant's third points. If Mrs.

Alr. George H. Higgins also for appel- Palmer had remained on the car and been lants.

injured by the collision, no one would think Messrs. W. D. Hinckley and W. E. of questioning the presumption of the deRice, for appellee:

fendant's negligence. The collision itself, In order to recover for injuries sustained without more, would have been evidence in jumping from a car, it must be "under that someone in the employ of the company the influence of a well-grounded fear that a had blundered, or neglected his duty. As a fatal collision is about to take place." matter of fact, the collision was due to the

Pennsylvania R. Co. v. Aspell, 23 Pa. 147, breaking of a brake chain; but the case was 62 An. Dec. 323; Willis v. Second Ave. within the unbending rule, applicable to Traction Co. 189 Pa. 430, 42 Atl. 1.

railroad and street passenger railway com

panies alike, that, where a passenger on a Brown, J., delivered the opinion of the car is injured without fault of his own, court:

there is a legal presumption of negligence, Mrs. Kate Palmer was a passenger on an 'casting upon the carrier the onus of rebut

ting it. Laing v. Colder, 8 Pa. 479, 49 Am. | Pennsylvania R. Co. v. Aspell, 23 Pa. 147, Dee. 533; Sullivan v. Philadelphia & R. R. 62 Am. Dec. 323. To this we can add nothCo. 30 Pa. 234, 72 Am. Dec. 698; Meier v. ing, except that a well-grounded fear that a Pennsylvania R. Co. 64 Pa. 225, 3 Am. Rep. collision is about to take place, which will 581: Philadelphia & R. R. Co. v. Anderson, result in fatal, or even serious, injury to 94 Pa. 351, 39 Am. Rep. 787; Fleming v. the passenger, is a justification to him to Pittsburgh, C. C. & St. L. R. Co. 158 Pa. leap from the car; and the presumption of 130, 22 L. R. A. 351, 38 Am. St. Rep. 835, the common carrier's negligence is not con27 Atl. 858: Clow v. Pittsburgh Traction fined to the case of injuries resulting from Co. 158 Pa. 410, 27 Atl. 1004; Direy v. Phil. actual collision, but extends to those caused adelphia Traction Co. 180 Pa. 401, 36 Atl. by an effort to escape it, when made on a 921; Kepner v. Harrisburg Traction Co. 183 well-grounded belief that it will occur. The Pa. 24, 38 Atl. 416. And it is immaterial collision itself would admittedly be due to that the collision was not due to any defect the presumed negligence of the company, in the car on which the plaintiff was riding, and to no other cause can be attributed the or the machinery connected with it, but to manifest danger of it, from which the plaina broken appliance on the car that ran into tiff in this case attempted to escape. The it; for the presuniption of the defendant's court's instructions, therefore, should have negligence arises, not only when the injury been that there was a presumption of the is caused by a defect in the road, cars, or company's negligence, and that there was no machinery, or by want of diligence or care burden upon the plaintiff to prove it until in those employed, but by any other thing the defendant had first rebutted the prewhich the company can and ought to consumption of it. trol as a part of its duty to carry the pas- In affirming defendant's fifth point the senger safely. Meier v. Pennsylvania R. Co. court fixed too low a standard for the duty 64 Pa. 225, 3 Am. Rep. 581. The other of the railway company. More is required thing here which was under the control of of a common carrier than mere reasonable the company was the chain that broke on precaution against injuries to passengers, another car which ran into the one on which and care that its cars and appliances are the plaintiff had been a passenger.

to be measured by those "in known general But the plaintiff was not bound to wait use.” While the law does not require the for the collision. It was rather for her, un utmost degree of care which the human der the instinct of self-preservation, to try mind is capable of imagining, it does require to escape from its danger, and, in seeking to that the highest degree of practical care avoid it, she is not necessarily chargeable and diligence shall be observed that is conwith neglect of her own safety in exposing sistent with the mode of transportation herself to another risk by jumping from the adopted; and cars and appliances are to be car. The company had confronted her with measured by those which have proved by exthe peril from which she would have esperience to be the most efficacious in known caped, and it is and ought to be responsible use in the same business. The rule upon to her for whatever naturally followed. In this subject, as laid down in Meier v. Penntrying to save herself, she was, at the same sylvania R. Co. 64 Pa. 225, 3 Am. Rep. 581, time, unconsciously trying to save the com- and which should have been followed by the pany from the consequences of its negli- court in answering the point, is: “The utgence, and of her effort to do so it ought to most care and vigilance is required on the be the last to complain, unless it is manifest part of the carrier. This rule does not rethat she acted rashly and imprudently. "Inquire the utmost degree of care which the such a case the author of the original peril human mind is capable of imagining; but it is answerable for all that follows.

does require that the highest degree of pracIf, therefore, a person should leap from the tical care and diligence should be adopted car under the influence of a well-grounded that is consistent with the mode of transfear that a fatal collision is about to take portation adopted. Railway passenger carplace, his claim against the company for riers are bound to use all reasonable precauthe injury he may suffer will be as good as tions against injury of passengers; and if the same mischief had been done by the these precautions are to be measured by apprehended collision itself. When the neg- those in known use in the same business ligence of the agents puts a passenger in which have been proved by experience to be such a situation that the danger of remain- efficacious. The company is bound to use ing on the car is apparently as great as the best precautions in known practical use. would be encountered in jumping off, the That is the rule,—the best precautions in right to coinpensation is not lost by doing known practical use to secure the safety of the latter; and this rule holds good even the passengers; but not every possible prewhere the event has shown that he might ventive which the highest scientific skill have remained inside with more safety." ' might suggest.”

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