in failing to exercise due care toward the rescuer. United States.-Thomason v. Southern R. Co. (1902) 51 C. C. A. 67, 113 Fed. 80. Georgia.-Jackson v. Standard Oil Co. (1896) 98 Ga. 749, 26 S. E. 60, 14 Am. Neg. Cas. 53. Illinois.-Voss V. Morris & Co. (1912) 169 Ill. App. 514; Ingram v. Jackson (1917) 206 Ill. App. 466. Indiana.-Evansville & C. R. Co. v. Hiatt (1861) 17 Ind. 102. Iowa. Saylor v. Parsons (1904) 122 Iowa, 679, 64 L.R.A. 542, 101 Am. St. Rep. 283, 98 N. W. 500, 15 Am. Neg. Rep. 543; Tyler v. Barrick (1916) 178 Iowa, 985, 160 N. W. 273. Kentucky. - Taylor Coal Co. V. Porter (1915) 164 Ky. 523, 175 S. W. 1014. Massachusetts. Dixon v. New York, N. H. & H. R. Co. (1910) 207 Mass. 126, 92 N. E. 1030. Michigan. Ryan v. Towar (1901) 128 Mich. 463, 55 L.R.A. 310, 87 N. W. 644. Mississippi. Billingsley v. Illinois C. R. Co. (1911) 100 Miss. 612, 56 So. 790. Missouri.-Donahoe v. Wabash, St. L. & P. R. Co. (1884) 83 Mo. 560, 53 Am. Rep. 594. Montana.-Bracey v. Northwestern Improv. Co. (1910) 41 Mont. 338, 137 Am. St. Rep. 738, 109 Pac. 706. New York.-Miller v. Union R. Co. (1908) 191 N. Y. 77, 83 N. E. 583; Burnes v. Staten Island Rapid Transit R. Co. (1892) 63 Hun, 628, 44 N. Y. S. R. 271, 17 N. Y. Supp. 741; Hirschman v. Dry Dock, E. B. & B. R. Co. (1899) 46 App. Div. 621, 61 N. Y. Supp. 304. North Carolina.-Norris v. Atlantic Coast Line R. Co. (1910) 152 N. C. 505, 27 L.R.A. (N.S.) 1069, 67 S. E. 1017. Ohio. Pittsburg, C. C. & St. L. R. Co. v. Lynch (1903) 69 Ohio St. 123, 63 L.R.A. 504, 100 Am. St. Rep. 658, 68 N. E. 703, 15 Am. Neg. Rep. 169. Pennsylvania.-Gramlich v. Wurst (1878) 86 Pa. 74, 27 Am. Rep. 684; Corbin v. Philadelphia (1900) 195 Pa. 461, 49 L.R.A. 715, 78 Am. St. Rep. 825, 45 Atl. 1070, 7 Am. Neg. Rep. 563; Neri v. Atlantic Ref. Co. (1917) 65 Pa. Super. Ct. 444. In actions for injury to one who is attempting to rescue another from imminent peril, it is necessary that negligence on the part of the defendant or its servants should be shown, even though the plaintiff was himself free from all blame; but in such cases it is sufficient if the defendant was negligent towards either the person in danger or the rescuer, its negligence toward the former being treated as directly inducing the attempt to rescue, and thereby causing the injury to the rescuer. Dixon v. New York, N. H. & H. R. Co. (1910) 207 Mass. 126, 92 N. E. 1030. It was said in Ingram v. Jackson (1917) 206 Ill. App. 466, that the authorities do not go to the extent of holding that the rescuer can recover, regardless of the question whether the danger of the party he was attempting to rescue was the result of negligence on the part of the person inflicting the injury, or not. A person who is himself free from negligence cannot be made liable in damages on account of injury sustained by a person who, at his request, comes to the assistance of one who is in danger or exposed to peril. Taylor Coal Co. v. Porter (1915) 164 Ky. 523, 175 S. W. 1014. The rule requiring negligence in bringing about the situation, or with respect to the rescuer, is well stated in Donahoe v. Wabash, St. L. & P. R. Co. (1884) 83 Mo. 560, 53 Am. Rep. 594, as follows: "It is to be observed that it is only when the railroad company, by its own negligence, created the danger, or through its negligence is about to strike a person in danger, that a third person can voluntarily expose himself to peril in an effort to rescue such person, and recover for an injury he may sustain in that attempt. For instance, if a man is lying on the track of a railroad intoxicated or asleep, but in such a position that he could not be seen by the men managing an approaching train, and they had no warning of his situation, and another, seeing his danger, should go upon the track to save his life, and be injured by the train, he could not recover, unless the trainmen were guilty of negligence, with respect to the rescuer, occurring after the beginning of his attempt. If the railroad company is not chargeable with negligence with respect to the person in danger, the case of the person who attempted to rescue him and was injured must be determined with reference to the negligence of the company in its conduct toward him and his in making the attempt. In other words, the negligence of the company as to the person in danger is imputed to the company with respect to him who attempts the rescue; and, if not guilty of negligence' as to such person, then it is only liable for negligence occurring, with regard to the rescuer, after his efforts to rescue the person in danger commenced." In all cases, negligence toward the person rescued, or the person making the rescue, after the attempt has begun, is essential to recovery. Bracey v. Northwestern Improv. Co. (1910) 41 Mont. 338, 137 Am. St. Rep. 738, 109 Pac. 706. The right of one voluntarily to incur peril to save the life of another in danger cannot be successfully urged, where the plaintiff's own testimony shows that the proximate cause of his injury in attempting the rescue was his own voluntary act, without negligence on the part of the defendant. Neri v. Atlantic Ref. Co. (1917) 65 Pa. Super. Ct. 444. e. Where rescue is not spontaneous, but 'deliberate. The fact that the rescuer has time to deliberate upon his course of action, and that he does not act spontaneously or impulsively in attempting to effect a rescue, has been held not to break the causal connection between the defendant's negligence and the rescuer's injury, sustained in making the attempt. See the reported case (WAGNER V. INTERNATIONAL R. Co. ante, 1). And the rule that the law has so high a regard for human life that it will not impute negligence to one who attempts to save it, unless the attempt is made under such circumstances as to constitute it rashness in the estimation of prudent persons, was said in Da Rin v. Casualty Co. of America (1910) 41 Mont. 175, 27 L.R.A. (N.S.) 1164, 137 Am. St. Rep. 709, 108 Pac. 649, to be broad enough to cover not only an attempt to save life under spontaneous impulse, aroused by sudden and unexpected perception of the peril, and without thought or calculation of the chances of injury or loss of life to the one making the attempt, but to extend to attempts made after such calculation as the circumstances permitted, the rescuer acting under the conclusion that he can save life without the loss of his own. f. Proximate cause. It should be observed that the annotation does not purport to treat the question of proximate cause, even though it arises in the class of cases under consideration, except so far as the question is somewhat distinctive to this class. The proximate cause of injury to one who voluntarily interposes to save the lives of persons imperiled by the negligence of another is the negligence which caused the peril. Maryland Steel Co. v. Marney (1898) 88 Md. 482, 42 L.R.A. 842, 71 Am. St. Rep. 441, 42 Atl. 60, 5 Am. Neg. Rep. 159; Perpich v. Leetonia Min. Co. (1912) 118 Minn. 508, 137 N. W. 12; Bond v. Baltimore & O. R. Co. (1918) 82 W. Va. 557, 5 A.L.R. 201, 96 S. E. 932, 19 N. C. C. A. 674. Of course, this principle runs through the cases generally, attention being called to the above only because the point was expressly referred to. And where a child, while crossing a bridge with its parents, fell through an opening in the bridge negligently allowed to remain unguarded, and the father plunged into the water to rescue the child, and both were drowned, it was held in Gibney v. State (1893) 137 N. Y. 1, 19 L.R.A. 365, 33 Am. St. Rep. 690, 33 N. E. 142, that the unsafe condition of the bridge was, in a legal sense, the cause of the drowning of the father as well as of the child, and that recovery could be had for his death from the state, because of its leaving the bridge in a dangerous condition. The proximate cause of injury to a four-year-old child who is run over by a train negligently operated at a high rate of speed, without a proper lookout, is the negligence of the railway company, although a third party, who is not charged with the custody of the child, but sees its danger and attempts to rescue it, may also be negligent in the method used, in holding the child in her arms while trying to catch her own child, with the result that her foot is caught in the rails. North Pennsylvania R. Co. v. Mahoney (1868) 57 Pa. 187, 12 Am. Neg. Cas. 517. But where a repair man in the defendant's factory, after repairing a machine, attempted to adjust a belt which operated the same, this service being out of his line of duty and being unnecessary, as the machine was not in use at the time and he was acting without instructions, and another employee, who volunteered to render assistance, was caught in the belt and drawn around the shaft, and the former, in attempting to rescue his coemployee, was caught in the shaft and killed, it was held that there could be no recovery for his death because, assuming that there was no contributory negligence, and that the employer was negligent as to the methods and machinery used, such negligence was not the proximate cause of the injury. Sann v. H. W. Johns Mfg. Co. (1897) 16 App. Div. 252, 44 N. Y. Supp. 641, 2 Am. Neg. Rep. 432. That the fact that the rescuer's act is deliberate and voluntary will not break the causal conection between the defendant's negligence and the injury resulting from the attempt to rescue, see the reported case (WAGNER v. INTERNATIONAL R. Co. ante, 1). As to the application of the doctrine of proximate cause under the particular circumstances, see also Anderson v. Northern R. Co. (U. C.) III. a, 1, infra; Smith v. Chicago City R. Co. (Ill.) III. a, 6, infra; Connell v. Prescott (Ont.) III. b, infra; Wichita Falls Traction Co. v. Hibbs (Tex.) III. d, infra. g. Employees; assumption of risk. As to right of employee to compensation under workmen's compensation acts, for injuries received while acting in an emergency, including injuries sustained while attempting to rescue another, see annotation following Baum v. Industrial Commission, 6 A.L.R. 1247. In a large percentage of the cases the rescuer was an employee of the person or corporation on account of whose negligence in bringing about the perilous situation the recovery was sought. It is assumed, in general, that the mere fact that one is an employee of the defendant will not preclude recovery. Attention is here called, however, to several cases which have specially mentioned this point. Thus, the fact that the rescuer is an employee of the defendant whose negligence brought about the dangerous situation was held not to preclude recovery for injury to the person attempting the rescue, in Pittsburg, C. C. & St. L. R. Co. v. Lynch (1903) 69 Ohio St. 123, 63 L.R.A. 504, 100 Am. St. Rep. 658, 68 N. E. 703, 15 Am. Neg. Rep. 169, where a watchman at a railroad crossing was struck and injured by a caboose negligently "kicked" over the crossing, when he rushed in front of the car in an attempt to rescue a woman, who had apparently become bewildered and did not heed his warning signal. The court said that the plaintiff's right of action was not unfavorably affected by the fact that he was an employee of the company. And it has been held that the doctrine of assumption of risk, either by virtue of the contract of employment or of voluntary exposure to known dangers, cannot be applied to prevent recovery against an employer for injury sustained by an employee while attempting to save human life imperiled by the employer's negligence, where the circumstances are not such that the rescuer can be charged with contributory negligene. International & G. N. R. Co. v. McVey (1904) Tex. Civ. App. -, 81 S. W. 991. In this case, where a section foreman was killed by being struck by a train while attempting to remove a push car from the track, the court, in overruling the contention that the deceased, in remaining upon the track, or dangerously near to it, after he became aware of the immediate approach of the train, assumed the risk of injury to which his voluntary conduct exposed him, said: "While it is true that one assumes the risk of injuries that might result from a voluntary exposure to known dangers, the same rule that would excuse him from the charge of contributory negligence in the effort to save life would relieve him from an application of the doctrine of assumed risk. Of course he assumes the risk, in the sense that he voluntarily encounters peril; but, if there is any force or logic in the rule that would excuse one from contributory negligence in the attempt to save life, we see no reason why the same rule would not apply in denying an application of the doctrine of assumed risk, when sought to be invoked to charge one with knowingly encountering an existing peril. He does not assume the risk of the extraordinary and unexpected danger that arises from his conduct in order to save life, any more than he would be charged with contributory negligence in a like case. . . . Neither assumed risk nor contributory negligence will defeat a recovery where the party injured or killed risks his life in order to save the lives of others, under circumstances showing that his conduct was not reckless or rash." Exposure of life by an employee, to save life, is neither wrongful nor negligent, when attempted within the scope of the employee's duty, provided it is made under such circumstances as do not constitute rashness in the judgment of prudent persons. Condiff v. Kansas City, Ft. S. & G. R. Co. (1891) 45 Kan. 256, 25 Pac. 562. III. Application. a. Dangers arising from operation of trains or street cars. 1. Rescue of persons on or near track. The largest number of cases of attempted rescue of other persons in peril is to be found in that class of decisions involving danger to persons on or near railroad tracks, in front of approaching trains. And the general rule, indicated under II. a, supra, that it is not negligence per se for one to risk his life, or serious injury, in order to save another person in imminent peril, if his conduct is not rash or reckless, has been applied or recognized in this class of cases, - where one in a railroad station saw an inebriated friend standing on the track with his back to an approaching train, apparently unconscious of the danger, and, believing that he could save his friend and avoid injury himself, as he would probably have succeeded in doing had the train been running at a reasonable and proper rate of speed, attempted to do so, but, after effecting the rescue, was himself struck by the engine and injured, Peyton v. Texas & P. R. Co. (1889) 41 La. Ann. 861, 17 Am. St. Rep. 430, 6 So. 690; - where one at a railway station sprang to the rescue of a girl who started across the tracks in front of a slowly approaching train, which she apparently did not see or hear, but which would have struck her except for the assistance rendered, it being held that there was sufficient evidence of negligence on the part of the railway company in failing to keep a proper lookout, and that the negligence of the person rescued was not imputable to the rescuer, Bond v. Baltimore & O. R. Co. (1918) 82 W. Va. 557, 5 A.L.R. 201, 96 S. E. 932, 19 N. C. C. A. 674 (as to the last point, see annotation following this case in 5 A.L.R. 206); - where a watchman at a railroad crossing was struck and injured by a caboose negligently "kicked" over the crossing, when he rushed in front of the car in an attempt to rescue a woman, who was apparently bewil dered and did not heed his warning -where a flagman at a street railway crossing lost his life by being struck by a switch engine negligently backed over the crossing, there being evidence that the flagman was on the track in the performance of his duties, in an effort to warn and protect from danger women who were crossing the track apparently insensible of their peril, and that to accomplish his purpose it was necessary for him to turn his back in the direction of the approaching engine, Missouri, K. & T. R. Co. v. Goss (1903) 31 Tex. Civ. App. 300, 72 S. W. 94; fallen, WAGNER V. INTERNATIONAL R. Co. (reported herewith) ante, 1; where a mother was injured by being struck by a street car which the gripman negligently failed to stop in time to avoid the accident, while she was endeavoring to rescue her threeyear-old child, which had escaped from her and gone upon the track, West Chicago Street R. Co. v. Liderman (1900) 187 Ill. 463, 52 L.R.A. 655, 79 Am. St. Rep. 226, 58 N. E. 367; where one lost her life by being struck by a train negligently operated over a street crossing, while she was attempting to rescue a three-year-old child on the track, it being held that a pleading to this effect was good as against a general demurrer, although it did not allege circumstances showing that the rescue was not attempted rashly and recklessly, Louisville & N. R. Co. v. Orr (1898) 121 Ala. 489, 26 So. 35; - where a mother, seeing her twoyear-old child running toward her from the opposite side of the street, across street car tracks, in front of an approaching car, rushed toward the child in an attempt to rescue it, ran upon the track' when the car was about 10 feet away, and was struck and killed by the car, Sherman v. United R. Co. (1919) 202 Mo. App. 39, 214 S. W. 223 (the court saying, in affirming a judgment for the death, that under the circumstances it would be highly unreasonable to require deliberate judgment on the mother's part, and that her act could not be termed wilful, reckless, or wanton, within the meaning of the doctrine above indicated. It was held that the deceased could not be held to have knowingly placed herself in a position of danger, and knowingly or where a passenger standing on a crowded interurban electric car was thrown from the car as it gave a lurch at a turn, in crossing a high bridge and trestle, and the plaintiff, who was a relative and companion, when the car stopped at the foot of the trestle, walked more than 400 feet up the trestle in the darkness, in order to effect a rescue, and was injured by fall-wilfully to have permitted the car to ing from the bridge, it being held that the fact that the plaintiff's action was not spontaneous, but deliberate, did not break the causal connection between the defendant's negligence and the plaintiff's injury, and that the court could not say, as matter of law, that the plaintiff was negligent in going upon the bridge, instead of searching for the body below, where it had strike her, so as to preclude recovery under the "last clear chance" doctrine); where a person, seeing a small child upon a railroad track, who, if not rescued, must inevitably be crushed by a rapidly approaching train, ran to the child and threw it clear of the track, but, continuing across the track himself, was struck |