by the locomotive, and sustained injuries from which he died, Eckert v. Long Island R. Co. (1871) 43 N. Y. 502, 3 Am. Rep. 721, affirming (1870) 57 Barb. 555;

-where one threw himself in front of a rapidly approaching train to rescue a child who had fallen on the tracks, and, before he could get out of the way, was struck by the train, which was moving at an unlawful rate of speed, Pennsylvania Co. v. Langendorf (1891) 48 Ohio St. 316, 13 L.R.A. 190, 29 Am. St. Rep. 553, 28 N. E. 172; - where a fifteen-year-old girl, while waiting for two street cars going in opposite directions to pass, seeing a child about four years old starting to cross the track in front of an approaching car on the track farthest from her, rushed toward him and pulled him from the track, but, stepping back, was struck and injured by the car on the nearer track, the motorman on the latter car having a clear view of the situation, and having ample time, by the exercise of ordinary care, to have stopped the car before striking the girl, Manzella v. Rochester R. Co. (1905) 105 App. Div. 12, 93 N. Y. Supp. 457, later appeal in (1906) 116 App. Div. 922, 101 N. Y. Supp. 1134, dismissed on authority of first appeal, and decision affirmed in (1909) 195 N. Y. 514, 88 N. E. 1125;

- where the plaintiff saw two boys about ten years old playing on a track of the defendant railway company, laid along a city street, and cars backing down upon them without warning, and without any light or trainman at the rear, in violation of the rules of the company, and, when the boys failed to heed his warning, rushed upon the track in order to save them, which he succeeded in doing, but was himself struck by the train and injured, Toner v. Pennsylvania R. Co. (1919) 263 Pa. 438, 106 Atl. 797, 18 N. C. C. A. 778;

- where a laborer working on a railroad track, who had stepped from the track upon the approach of a train, seeing a small boy standing on the track with his back toward the approaching train, apparently unaware thereof, rushed upon the track 19 A.L.R.-2.

to rescue the boy, and succeeded in doing so, but slipped and fell, and was struck by the train and killed, Mobile & O. R. Co. v. Ridley (1905) 114 Tenn. 727, 86 S. W. 606, 4 Ann. Cas. 925;

- where a mother, seeing her twenty-months'-old child standing on a railroad track with a rapidly approaching train about half a mile away, ran to the rescue, but was struck by the engine as she was lifting the child from the track, there being evidence of negligence on the part of the railway company in failing to keep a proper lookout to discover persons, even trespassers, on the track, Panhandle & S. F. R. Co. v. Haywood (1921) Tex. Civ. App. 227 S. W. 347;

where an employee, who had driven to a brickyard to obtain a load for his employer from a car, seeing a coemployee, who had also driven there for the same purpose, in a position of imminent peril, struggling to restrain his horse, which was plunging upon or close to a track of the defendant railway company upon which a train was slowly approaching, came to his assistance, and was struck by the train and injured, the court holding that it was for the jury to determine whether the attempt was merely one to save property, that it was not necessarily a negligent act to come to the rescue, even at the risk of the rescuer's own life, and that there was sufficient evidence of negligence on the part of the defendant in making an unusual amount of noise by the train, in failing to keep a proper lookout, or to see the obstructions on the track and avoid the accident, or in negligently starting the train without warning, after it had come almost, if not entirely, to a stop, before the rescue was attempted, Dixon v. New York, N. H. & H. R. Co. (1910) 207 Mass. 126, 92 N. E. 1030;

-where one who came to the assistance of a driver on a highway, whose horse became unmanageable on the approach of a train, was injured by coming in contact with the train while attempting to hold the horse by the bridle and prevent its going forward upon the track, there

being evidence that the train, which was running at a slow rate of speed in plain view of the crossing, could, by the exercise of proper care, have been stopped in time to have avoided the accident, Southern R. Co. v. Baptist (1913) 114 Va. 723, 77 S. E. 477.

It was held in Hodges v. Erie R. Co. (1919) 168 C. C. A. 498, 257 Fed. 494, that it was not negligence per se for a mother voluntarily to risk her own life in attempting to rescue from impending danger her three-year-old child, who had crawled under a freight train blocking a much-used pathway, so as to preclude recovery from the railway company for her death, in case the train was negligently started, without warning, while she was under it for this purpose.

However, in DeMahy v. Morgan's L. & T. R. & S. S. Co. (1893) 45 La. Ann. 1329, 14 So. 61, where a mother and her child, nearly three years old, were passengers on a car left standing with others on a sidetrack, and the child, after passing out upon the platform of the car, was thrown off between that and the next car by a jolt caused by coupling other cars with the ones thus standing, when the mother jumped to the ground and thrust her arm under the still moving cars to reach and protect the child, pushing it off of the rail, and in so doing her arm was caught and badly broken by one of the wheels, it was said that in her efforts to guard and save her child she was not to blame, and that her conduct commanded the highest admiration; but a recovery for the injury was denied, upon the ground of contributory negligence on her part in allowing the child to go upon the platform.

See also Atlanta & C. Air Line R. Co. v. Leach (Ga.) II. c, supra, where the injured party himself brought about the dangerous situation of the person whose rescue was attempted, in taking with him a small boy across a railway trestle.

But even though a parent is negl.gent in permitting a child to go upon a railroad track, such negligence will not preclude recovery from the rail

road company for damages for injury to the parent, sustained by being struck by a train while attempting to rescue the child, if, after the situation became apparent to those in charge of the train, they negligently failed to check its speed, or to stop it, as they might have done, in time to avoid the accident. Donahoe v. Wabash, St. L. & P. R. Co. (1884) 83 Mo. 560, 53 Am. Rep. 594. The court said that if the servants of the defendant railway company were guilty of negligence after the parent went upon the track, in failing to stop or check the speed of the train, that canceled her prior contributory negligence, and removed that question from the case; that the parents' contributory negligence in permitting the child to be on track would not prevent a stranger from recovering damages for an injury sustained in attempting its rescue, and they would have the same right.

Where a mother, seeing her seventeen-months'-old child on a railroad track in front of an approaching train, rushed upon the track in order to rescue the child, the court, in Billingsley v. Illinois C. R. Co. (1911) 100 Miss. 612, 56 So. 790, although denying recovery to the mother for injuries by being struck by the train, on the ground that negligence was not shown on the part of the defendant, said that surely she was not guilty of any contributory negligence in going upon the track, under the circumstances, in order to rescue the child from impending danger.

One who goes upon a street car track in front of an approaching car, in order to rescue a child in imminent peril thereon, does not stand in the position of a trespasser in suing the railway company for injury by being struck by the car. Manzella v. Rochester R. Co. (1905) 105 App. Div. 12, 93 N. Y. Supp. 457, later appeal in (1906) 116 App. Div. 922, 101 N. Y. Supp. 1134, which is affirmed in (1909) 195 N. Y. 514, 88 N. E. 1125.

The fact that one originally is a trespasser on a railway track, at the time he discovers a child in peril thereon from an approaching train,

will not make him a trespasser in his subsequent effort to rescue the child from the danger. San Antonio & A. P. R. Co. v. Gray (1902) 95 Tex. 424, 67 S. W. 763, where one walking on a railroad track, and seeing his child running toward him on the track, in front of an approaching train, attempted to reach the child, but fell in crossing a trestle, sustaining the injuries in question.

And where a girl at a railway crossing, seeing smaller children playing on the track and knowing that a train half a mile away was swiftly approach-. ing, went upon the track in an effort to save them, it was held that she was not a trespasser, and that her contributory negligence would not bar recovery for injury by being run over by the train, when, having gone upon the track for this purpose, her foot became caught between the rail and planks of the crossing, and she was unable to extricate herself. Spooner v. Delaware, L. & W. R. Co. (1889) 115 N. Y. 22, 21 N. E. 696.

It was held in Norris v. Atlantic Coast Line R. Co. (1910) 152 N. C. 505, 27 L.R.A. (N.S.) 1069, 67 S. E. 1017, that it is not negligence per se for one to jump across a railroad track in front of a moving engine in the nighttime, when the speed of its approach cannot be determined, to rescue a person in peril on the tracks because of the negligence of the railroad company.

Where a boy about fourteen years old, who was escorting a girl about the same age across a railroad bridge, remained on the bridge in an attempt to rescue her, when she fell in attempting to escape from an approaching train, the court in Becker v. Louisville & N. R. Co. (1901) 110 Ky. 474, 53 L.R.A. 267, 96 Am. St. Rep. 459, 61 S. W. 997, an action for injury to the boy by being struck by the train, said it was evident that it was his legal as well as his moral duty to remain with and seek to rescue his companion, and that, so far as that question was concerned, the law was settled that he was not guilty of any contributory negligence for remaining on the bridge for the purpose of saving the life of his com

panion. It was held in this case that the question of negligence on the part of the railway company should have been submitted to the jury, as there was evidence from which it might be found that those in charge of the train saw the children on the bridge in ample time to have slackened its speed, so as to enable them to escape.

In most of the cases in the annotation, the action was for injury or death of the rescuer. However, in North. Pennsylvania R. Co. V. Mahoney

(1868) 57 Pa. 187, 12 Am. Neg. Cas. 517, the action was for injury to the person whose rescue was attempted, a four-year-old child, and the question was whether the conduct of the rescuer constituted such negligence as precluded recovery. In this case, where a woman who had not been charged with the care of the child, which had been playing upon or near the railroad track with her own child, saw it between the tracks, and, for the purpose of protecting it, caught it in her arms, and then, in trying to seize her own child who avoided her, caught her foot in the rail of the track, was thrown down, struck by the train, and killed, and the child's arm was seriously injured, it was held that the woman's conduct in attempting the rescue, though negligent, was not contributory negligence which would discharge the railroad company from liability for negligence in running at a high rate of speed, without a proper lookout.

And where a girl, who was attempting to board a street car when it was suddenly started, continued to grasp the handrail of the car and was dragged for a considerable distance, when her escort caught hold of her and drew her from the car, it was held in Schoenfeld v. Metropolitan Street R. Co. (1903) 40 Misc. 201, 81 N. Y. Supp. 644, that even if the escort's act could be attributable to the girl, who was suing for the injury, nevertheless it was for the jury to determine whether or not his act would constitute rashness in the judgment of a prudent person, so as to charge her with contributory negligence.

It has been held, in an action for in

jury to a mother who was struck by a train while attempting to rescue her child, that the mother should be permitted to testify that when she started to get the child from the track she thought she would be able to do so without injury, since evidence should be admitted to show how the danger appeared to the person thus attempting the rescue, and it would be difficult for the rescuer, by a mere statement of the facts surrounding her, to portray the situation so that the jury might see it as it appeared to her at the time, and her opinion and conclusion would be admissible for that purpose. Panhandle & S. F. R. Co. v. Haywood (1921) Tex. Civ. App. —, 227 S. W. 347.

The principle that unless negligence is shown in bringing about the perilous situation, or failure to exercise due care toward the rescuer, the latter cannot recover, even though he is without contributory negligence in attempting to rescue another person who is in danger, is exemplified by Evansville & C. R. Co. v. Hiatt (1861) 17 Ind. 102, where a son, who was walking with his father on the railroad track toward a train approaching in full view, stepped off the track as they neared the train, but the father, an old man, remained upon the track, and the son was struck and injured by the train when he returned and attempted to rescue his father.

And it was held in Ingram v. Jackson (1917) 206 Ill. App. 466, where the party in peril stepped in front of an approaching train when it was close. at hand, and his son, for whose death damages were sought, attempted to rescue him, both being trespassers on the railroad track, that the evidence did not show that the perilous situation had been brought about through the negligence of the railway company; and also that the evidence did not show any failure on the part of the railway employees to exercise due care after discovering the peril. And it was held that the attempted rescue would not change the relation of the deceased, as a trespasser or licensee, so as to alter the railroad company's

responsibility and render it liable for running at excessive speed, unless the situation of peril was brought about through the negligence of the railway company.

So, where the evidence justified merely the inference that the boy for whose death the action was brought, when he found that both he and his younger brother, who was crossing the track with him, were in a position of danger, sacrificed his own safety to save his brother, but did not justify an inference that the deceased was brought into a position of danger by the attempt to save his brother, it was held in Miller v. Union R. Co. (1908) 191 N. Y. 77, 83 N. E. 583, that an instruction was erroneous, as inapplicable to the evidence, to the effect that, if the jury found that the deceased came in front of the car in the course of a sudden effort to save the smaller boy from danger caused by the negligence of the defendant, he would not necessarily be chargeable with negligence merely because he ran into danger himself, if the danger was not brought about from some lack of reasonable care on his part.

And recovery was denied in Burnes v. Staten Island Rapid Transit R. R. Co. (1892) 63 Hun, 628, 44 N. Y. S. R. 271, 17 N. Y. Supp. 741, for injury to a youth who went upon a railroad track in order to save a smaller boy, who was endangered by an approaching train, on the ground that the evidence was insufficient to show negligence on the part of the railway company, in failing either to observe the danger or to stop the train after it was discovered.

And it was held in Hirschman v. Dry-Dock, E. B. & B. R. Co. (1899) 46 App. Div. 621, 61 N. Y. Supp. 304, that a mother who was injured in attempting to rescue her child from in front of an approaching street car could not recover, even if she was without contributory negligence, because the evidence was insufficient to show negligence on the part of the railway company, the only inference from the evidence being that the child ran upon the track unexpectedly, so close to the rapidly approaching car that the

driver thereof had no opportunity to take any steps to stop the car, or to save the child from injury.

It was held, also, that, since the defendant had not created the perilous situation, and had not discovered the danger in time to avoid it, although it might have been negligent in failing to keep a proper lookout, or in running at an unlawful rate of speed, there could be no recovery in an action against a street car company for injury by being struck by a car operated along a street, the injury not occurring at a crossing,-where the plaintiff and an acquaintance, who was intoxicated, were walking along the track, when the latter lay down on the track, and the plaintiff, while trying to rescue him, was struck and injured by a street car. Scates v. Rapid Transit R. Co. (1914) Tex. Civ. App. —, 171 S. W. 503. The rule, the court said, is that when a party seeks to rescue another from a perilous position, who has negligently placed himself in such position through no fault of the railroad, and the party attempting the rescue is injured, no liability on the part of the railway company exists, and he cannot recover.

The case of Anderson v. Northern R. Co. (1875) 25 U. C. C. P. 301, seems out of line with the other decisions. It was held that the act of a man who was passing along a wharf in a safe position, upon which were laid three railroad tracks occupying nearly the whole surface of the wharf, in hurrying to the rescue of a woman who, passing down the wharf and stepping aside to avoid meeting a number of men, stepped in front of an approaching train upon one of the tracks, and would have been run over but for his assistance, was the direct and proximate cause of his death by being struck by the train, and that whatever sympathies it and its melancholy results might appeal to, it was a negligent act which would bar a recovery of damages therefor, although the persons operating the train were also negligent.

2. Engineers or other train employees remaining at post to avoid wreck. The law does not require engineers

in charge of trains to leave their posts when danger is threatened, in order to save themselves; and they cannot be charged with negligence in remaining as long as there is hope, however faint, of averting disaster to others. Thus, in Central R. Co. v. Crosby (1885) 74 Ga. 737, 58 Am. Rep. 463, 14 Am. Neg. Cas. 140, it was said that courts should place themselves in the position of the engineer at the moment of imminent danger, demanding instantaneous decision and action, and not scan closely the grounds of hope he may have had to save others, though risking himself in the effort; that it is the policy of the carrier, as well as of the public generally, not to encourage the officer in charge of the engine to abandon his post in the moment of danger, but to reward the courage of remaining, if there be a hope, however slight, of saving trains from collision; that, while, if there were no shadow of hope of averting danger to others, the engineer should save himself, yet, on a hope, however faint,-for reasons however inconclusively establishing the soundness of his conclusion,-that by risking his own life he would probably save other lives, he should remain at his post; and the act of heroism, though inoperative of good either to himself or others in the particular case, should be regarded as martyrdom to public policy, rather than want of precaution to save himself.

In an action for the death of an engineer in charge of a freight train in railroad yards, moving at a rate of 2 or 3 miles an hour, who was killed by a collision with another freight train which was moving backward, without lights or signals, at the rate of 8 or 10 miles per hour, the accident occurring in the nighttime, it was found in Cottrill v. Chicago, M. & St. P. R. Co. (1879) 47 Wis. 634, 32 Am. Rep. 796, 3 N. W. 376, that the engineer, after reversing his engine when the collision was threatened, could, in the exercise of ordinary care and prudence, have gotten off the engine before the collision, as in fact the fireman did, and have escaped injury. But it was held on appeal that a finding of negligence on the part of the