attempting a dangerous drive, it could not be said, as matter of law, that they were not warranted in doing so. The decisions have carried this principle much further than is necessary for the purpose of the case at bar.. Exceptions overruled. 677. ECKERT v. LONG ISLAND RAILROAD COMPANY COURT OF APPEALS OF NEW YORK. 1871 43 N. Y. 502 APPEAL from the judgment of the late General Term of the Supreme Court, in the second judicial district, affirming a judgment for the plaintiff in the City Court of Brooklyn, upon the verdict of a jury. Action in the City Court of Brooklyn, by the plaintiff as administratrix of her husband, Henry Eckert, deceased, to recover damages for the death of the intestate, caused as alleged by the negligence of the defendant, its servants and agents, in the conduct and running of a train of cars over its road. The case, as made by the plaintiff, was, that the deceased received an injury from a locomotive engine of the defendant, which resulted in his death, on the 26th day of November, 1867, under the following circumstances: He was standing in the afternoon of the day named, in conversation with another person about fifty feet from the defendant's track, in East New York, as a train of cars was coming in from Jamaica, at a rate of speed estimated by the plaintiff's witness of from twelve to twenty miles per hour. The plaintiff's witness heard no signal either from the whistle or the bell upon the engine. The engine was constructed to run either way without turning, and it was then running backward with the cow-catcher next the train it was drawing, and nothing in front to remove obstacles from the track. The claim of the plaintiff was that the evidence authorized the jury to find that the speed of the train was improper and negligent in that particular place, it being a thickly populated neighborhood, and one of the stations of the road. The evidence on the part of the plaintiff, also showed, that a child three or four years old, was sitting or standing upon the track of the defendant's road as the train of cars was approaching, and was liable to be run over, if not removed; and the deceased, seeing the danger of the child, ran to it, and seizing it, threw it clear of the track on the side opposite to that from which he came; but continuing across the track himself, was struck by the step or some part of the locomotive or tender, thrown down, and received injuries from which he died the same night. ... At the close of the plaintiff's case, the counsel for the defendant moved for a nonsuit upon the ground that it appeared that the de ceased's negligence contributed to the injury, and the motion was denied and an exception taken. After the evidence was all in, the judge was requested by the counsel for the defendant to charge the jury, in different forms, that if the deceased voluntarily placed himself in peril from which he received the injury, to save the child, whether the child was or was not in danger, the plaintiff could not recover, and all the requests were refused and exceptions taken; and the question whether the negligence of the intestate contributed to the accident was submitted to the jury. The jury found a verdict for the plaintiff, and the judgment entered thereon was affirmed, on appeal, by the Supreme Court, and from the latter judgment the defendant has appealed to this court. Aaron J. Vanderpoel, for the appellant.. GROVER, J. The important question in this case arises upon the exception taken by the defendant's counsel to the denial of his motion for a nonsuit, made upon the ground that the negligence of the plaintiff's intestate contributed to the injury that caused his death. . . Negligence implies some act of commission or omission wrongful in itself. Under the circumstances in which the deceased was placed, it was not wrongful in him to make every effort in his power to rescue the child, compatible with a reasonable regard for his own safety. It was his duty to exercise his judgment as to whether he could probably save the child without serious injury to himself. If, from the appearances, he believed that he could, it was not negligence to make an attempt so to do, although believing that possibly he might fail and receive an injury himself. . . . For a person engaged in his ordinary affairs, or in the mere protection of property, knowingly and voluntarily to place himself in a position where he is liable to receive a serious injury, is negligence which will preclude a recovery for an injury so received; but when the exposure is for the purpose of saving life, it is not wrongful, and therefore not negligent unless such as to be regarded either rash or reckless. The jury were warranted in finding the deceased free from negligence under the rule as above stated. The motion for a nonsuit was, therefore, properly denied. . . . Upon the principle above stated, the judgment appealed from must be affirmed with costs. CHURCH, CH. J., PECKHAM and RAPALLO, JJ., concur. ALLEN, J. (dissenting). The plaintiff's intestate was not placed in the peril, in which he received the injury resulting in his death, by an act or omission of duty of the defendants, its servants, or agents. He went upon the track of the defendant's road in front of an approaching train, voluntarily, in the exercise of his free will, and while in the full possession of all his faculties, and with capacity to judge of the danger. His action was the result of his own choice, and such choice not compulsory. He was not compelled, or apparently compelled, to take any action to avoid a peril and harm to himself, from the negligence or wrongful act of the defendant or the agents in charge of the train. . . . To him and consequently to the plaintiff, the maxim "volenti non fit injuria" applies. I am of the opinion that the judgment of the Supreme Court and of the City Court of Brooklyn should be reversed and new trial granted, costs to abide event. FOLGER, J., concurred in the foregoing opinion. 678. COOK v. JOHNSTON Judgment affirmed. SUPREME COURT OF MICHIGAN. 1885 58 Mich. 437 ERROR to Wayne. (JENNISON, J.) Nov. 4. Nov. 11. Case. Defendant brings error. Reversed. E. T. Wood and Willis G. Clarke for appellant. . . . Sylvester Larned for appellee. CAMPBELL, J. Plaintiff recovered damages in the sum of $3,000 for personal injuries claimed to have been caused by defendant's negligence whereby it is alleged a fire was set in a shed occupied by plaintiff. The facts as relied upon were that plaintiff's husband was a tenant of defendant, occupying a wing of her house at the corner of Sixteenth and Canfield streets in Detroit. Behind the house was a low shed divided into three parts by internal partitions from five to six feet high, of which defendant occupied the middle one, and plaintiff's husband the adjoining one at the north end. In the middle partition was a water-closet used by defendant and her tenants jointly. In this middle part, on the side furthest from Mr. Cook's, was an ashbarrel, which Mr. Cook described as a stout, iron-bound cask, such as is used for liquids. Plaintiff claims that the fire was caused by ashes in this barrel. She and her husband, as they testify, were awakened by the light of the fire burning through the top of this middle part, and as soon as they could they went into their own part, and she undertook to get out their horse, which was lying down so that she could not easily loose the halter. While trying to do this the fire swept over the partition and burned her very severely, so as to nearly or quite disable her from doing her accustomed work. The principal question in the case was upon the liability of defendant if the fire took from negligence for which she may have been chargeable for the damages on which recovery was had in this case. The plaintiff showed by her testimony that she and her husband saw the ash-barrel daily and knew all about its position. It also appears by the showing of both that the shed, which was entirely open within from end to end, above the partitions, was burning so brightly as to wake them up, and continued burning when they entered to loose the horse and get out the buggy. The danger was before their eyes, and what happened by the sweeping down of the flames was as likely to happen as not. It is not very important by what name the action of plaintiff should be called. It was such a risk as she chose to take, to save her husband's property. But it was a plain and palpable risk nevertheless, and the injury would not have occurred unless for her voluntary act in assuming the exposure. There is some conflict in the cases concerning what damages have been held not too remote for recovery. But it would be going beyond all reason to hold a person liable for bodily injuries suffered by another in voluntarily and deliberately entering a burning wooden shed not divided into detached parts, and reached by the flames while at work within it. The loss of presence of mind under such circumstances is one of the commonest and most likely incidents of incurring such an exposure. The act in which she was engaged may have been such as she may have thought proper and laudable, and worth some risk; but defendant's responsibility cannot be created or increased by such independent and voluntary conduct of plaintiff in putting herself in harm's way. We think that no recovery should have been had on the facts as shown by plaintiff herself, and that the case should not have gone to the jury. The judgment must be reversed with costs and a new trial granted. The other Justices concurred. 679. PEGRAM v. SEABOARD AIR LINE R. Co. (1905, 139 N. C. 303, 306, 51 S. E. 975). BROWN, J. It is very generally held by the Courts of this country that where one is exposed to peril by the negligence of another, the latter is liable in damages for injuries received by a third person in a reasonable effort to rescue the person imperilled. Considerable divergence, however, exists between the Courts as to how far this rule will be extended in an effort to save property endangered by the negligence of another. This question has provoked much judicial discussion. Some jurisdictions deny the right to recover at all, while others have extended the rule so as to give the party injured redress where his effort to save property has been such as a reasonably prudent man would have made under similar circumstances. No one, however, should be permitted to recover for injury sustained in attempting to recover mere property in the face of obvious danger such as no reasonably prudent man would under the circumstances incur. We are willing to hold, with many able jurisdictions, that when the employer's property is set on fire by the negligence of another, the employee may attempt to rescue it, but not in the presence of obvious danger. . . . If it be proven that the intestate [in this case] had escaped from the burning building and had reached a place of safety, the defendant is absolved from liability for his death, unless the plaintiff replies by showing that intestate re-entered the burning building for the purpose of saving his employer's property and that at the time he did so a reasonably prudent person might well have done the same thing. . . . ... 680. ENGLEKEN v. HILGER SUPREME COURT OF IOWA. 1876 43 Ia. 563 APPEAL from Jackson Circuit Court. Thursday, June 15. Action to recover damages caused by defendant selling to the husband of plaintiff intoxicating liquors. Jury trial; verdict and judgment for plaintiff, and defendant appeals. W. E. Leffingwell, for appellant. William Graham and D. A. Wynkoop, for appellee. SEEVERS, C. J. The answer states that the husband of plaintiff, for several years immediately preceding the commencement of the action, had been in the habit of becoming intoxicated, and that plaintiff knew this fact, and then proceeds as follows: "6. That the plaintiff, notwithstanding his appetites and habits, would and did repeatedly supply him with whiskey and other intoxicating liquors, at home, and directed others to procure the same for him, she giving the money to purchase and pay for the same, and have the same taken to the house of the plaintiff for her husband to drink, and he did drink the same frequently to intoxication; that she frequently requested persons in Bellevue to sell and let her husband have intoxicating liquors. "7. That the plaintiff was in the habit of drinking with her husband intoxicating liquors until he became drunk, and that any abuse of herself and children by her husband when intoxicated was in consequence of intoxication produced by her own acts." The plaintiff moved the Court to strike out this portion of the answer because it was irrelevant and immaterial, which motion was sustained and defendant excepted. The answer clearly and distinctly states that any abuse of plaintiff and her children by her husband when intoxicated was in consequence of intoxication produced by her own acts. The question for determination is, Can a wife recover damages caused by her intoxicated husband, to whose intoxication she directly contributed? Not only so, but can she recover exemplary damages in such case, for if she recovers at all, she may recover such damages. We are of the opinion she cannot. It seems to us no just or legal reason can be given for permitting her to so recover. The damages it will be seen were caused by the act of the plaintiff. Why should she be permitted to recover from another damages for wrongs and injuries inflicted on herself by her intoxicated husband when she by her own act caused the intoxication? The mere statement of the proposition is its own refutation. It is not necessary to determine in this case, where the wife contributes merely to the habit of her husband to drink intoxicating liquors, that she recover of another who causes such intoxication from which she is |