American law reports annotated

ping to count the cost, or measure the risk which she is incurring; and to say that an act to which her affection irresistibly impelled her should be charged against her as something imprudent and unnecessary would be to shock a sentiment which is as universal as mankind. The law is not the creature of cold-blooded, merciless logic, and its inherent justice and humanity will never for a moment permit the act of a mother in saving her offspring, no matter how desperate it may have been, to be imputed to her as negligence, or at any time, or in any manner, used to her detriment."

It is for the jury to say, under all the circumstances, whether the conduct of a person injured in an attempt to save another from danger is to be deemed so reckless as to defeat the right of recovery. See, for example, Texas & N. O. R. Co. v. Scarborough (1907) Tex. Civ. App. 104 S. W. 408, affirmed in (1908) 101 Tex. 436, 108 S. W. 804; Condiff v. Kansas City, Ft. S. & G. R. Co. (1891) 45 Kan. 256, 25 Pac. 562.

The question whether one voluntarily risking his own safety or life in attempting to rescue another from impending danger should be charged with contributory negligence, in an action brought by him to recover damages for injuries received in attempting the rescue, was said in Pennsylvania Co. v. Langendorf (1891) 48 Ohio St. 316, 13 L.R.A. 190, 29 Am. St. Rep. 553, 28 N. E. 172, to be a mixed question of law and fact, which should be submitted to the jury under proper instructions.

If the injury threatened is serious, even though it does not clearly appear that death would necessarily result, the rule is applicable. Manthey W. Rauenbuehler (1902) 71 App. Div. 173, 75 N. Y. Supp. 714, 11 Am. Neg. Rep. 304. The court said that if the condition is such that it shows imminent danger of serious injury, or death, the rule is to be applied to the act out of which the contributory negligence is claimed to arise; and "when it is coupled with negligence of another in producing these conditions, it will be quite an extreme case which

defeats a recovery by the court on the ground of contributory negligence." A leading case on the present question is Eckert v. Long Island R. Co. (1871) 43 N. Y. 503, 3 Am. Rep. 721, where a person was killed in attempting to rescue a child whom he saw on a railroad track in front of an approaching train. In holding that a nonsuit, sought on the ground of the deceased's contributory negligence, was properly denied, the court said that it was his duty to exercise his judgment as to whether he could probably save the child without serious injury to himself; that if, from the appearances, he believed that he could, it was not negligence to make an attempt so to do, although he believed that possibly he might fail and receive an injury himself; that the law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons.

Also, in Linnehan v. Sampson (1879) 126 Mass. 506, 30 Am. Rep. 692, 1 Am. Neg. Cas. 17, in referring to an attempted rescue of persons in danger, it is said: "The law does not require cowardice or absolute inaction in such a state of things. Neither does it require, in such an emergency, that the plaintiff should have acted with entire self-possession, or that he should have taken the wisest and most prudent course, with a view to his own self-preservation, that could have been taken. He certainly may take some risk upon himself, short of mere rashness and recklessness."

Persons are justified in assuming greater risks to protect human life than would be sanctioned under other circumstances. Schroeder v. Chicago & A. R. Co. (1891) 108 Mo. 322, 18 L.R.A. 827, 18 S. W. 1094; Perpich v. Leetonia Min. Co. (1912) 118 Minn. 508, 137 N. W. 12.

A person who voluntarily attempts to rescue one whose life is imperiled by the negligence of another, if injured in the attempt, may recover therefor from the negligent person, if the act of attempted rescue is not

one of extreme recklessness; the law will not weigh with technical precision the rules of contributory negligence or assumption of risk. Perpich v. Leetonia Min. Co. (Minn.) supra.

It is not negligence, as matter of law, for one who is not acting rashly or recklessly to expose himself voluntarily to great danger, even to the risk of life and limb, in order to rescue another from a like peril; and such a voluntary exposure is not to be regarded as rash or reckless, if there appears to be a fair chance of success, whether the person in danger is, or is not, a child, or an aged or decrepit person; and this is true even though the person attempting the rescue knows that it involves great hazard to himself, without a certainty of accomplishing the attempted rescue. Dixon v. New York, N. H. & H. R. Co. (1910) 207 Mass. 126, 92 N. E. 1030.

And it was said in Hollaran v. New York (1915) 168 App. Div. 469, 153 N. Y. Supp. 447, 9 N. C. C. A. 890, that it was not necessary that the person in peril should be incapable by age of appreciating his danger, the court citing O'Brien v. Erie R. Co. (1910) 139 App. Div. 291, 123 N. Y. Supp. 1040, where an adult was attempting to save another adult. The Hollaran Case was one where the injury occurred in attempting to stop runaway horses in a street, without imminent danger to any definite person.

In Louisville & N. R. Co. v. Orr (1898) 121 Ala. 489, 26 So. 35, the court said: "It is the settled doctrine in this connection, based upon the law's regard for human life, that when one risks his life and loses it in an effort to save the life of another, or to protect another who is exposed to a sudden peril, such risk and exposure for such a purpose are not negligence, unless the effort is made under such circumstances as to constitute recklessness and rashness in the judgment of a man of ordinary prudence; and it cannot be said to be a rash or reckless act if the appearances justified a belief that he could effect a rescue, even though he should also have reason to believe, and in fact did believe,

that he might fail and receive grievous injury himself."

And in Bracey v. Northwestern Improv. Co. (1910) 41 Mont. 338, 137 Am. St. Rep. 738, 109 Pac. 706, the court said: "The rule rests upon the principle that it is commendable to save life, and, though a person attempting to save it voluntarily exposes himself to danger, the law will not readily impute to him responsibility for an injury received while doing so. In such cases the incurring of the danger is not per se negligence, and the question whether there was contributory negligence is ordinarily to be answered by the jury upon proof of the circumstances surrounding the tempt to rescue, such as the alarm, excitement, and confusion usually present, and the uncertainty as to the means to be employed, the promptness required, and the liability to err in the exercise of judgment as to the best course to pursue; and great latitude of judgment must be allowed to one who is impelled by the dictates of humanity to decide and act in the face of emergencies."

So, the rule was laid down in Bourdier v. Louisiana Western R. Co. (1912) 131 La. 690, 60 So. 78, that, where one is placed in a position of danger through the negligence of another, the law does not expect of him the same use of his reasoning faculties as under ordinary circumstances, and does not charge him with contributory negligence because of his failure to weigh dangers and to choose the least dangerous course of action.

The same principle is applied or recognized in many other cases, as, for example, Jones v. Mackay Teleg. Cable Co. (1915) 137 La. 121, 68 So. 379, where, in the syllabus by the court, it is said: "One who suffers personal injury by risking his life to save the lives of others in danger is not to be charged with contributory negligence for failing to exercise his best judgment in the emergency."

And in Pennsylvania Co. v. Langendorf (1891) 48 Ohio St. 316, 13 L.R.A. 190, 29 Am. St. Rep. 553, 28 N. E. 172, the court laid down the rule that,

while one who rashly and unnecessarily exposes himself to danger cannot recover damages for injury thus brought on himself, yet, where another is in great and imminent danger, one who attempts a rescue may be warranted by surrounding circumstances in exposing his limbs or life to a very high degree of danger; and in such cases he should not be charged with the consequences of errors of judgment, resulting from the excitement and confusion of the moment.

One acting in an emergency to rescue the life of another from imminent peril is not chargeable with negligence merely because he failed to make the wisest choice of the chances to escape disaster, or even if he adopts the one most perilous. 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.

In almost every instance of rescue, there is an emergency calling for quick determination of the course of action, and leaving practically no time for deliberation; when this happens in the exercise of other rights, the law makes due allowance for it, and does not hold the injured party responsible for error of judgment as to his course of conduct. 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.

The court in Norris v. Atlantic Coast Line R. Co. (1910) 152 N. C. 505, 27 L.R.A. (N.S.) 1069, 67 S. E. 1017, said that it is well established that, when the life of a human being is suddenly subjected to imminent peril through another's negligence, either a comrade or a bystander may attempt to save it, and his conduct is not subjected to the same exacting rules which obtain under ordinary conditions; that, when one sees his fellow man in such peril, he is not required to pause and calculate as to court decisions, or to recall the last statute as to the burden of proof, but he is allowed to follow the promptings of a generous nature and extend the help which the occasion requires, and his efforts will not be imputed to him for

wrong, according to some of the decisions, unless his conduct is rash to the degree of recklessness; and that all of the decisions hold that full allowance must be made for the emergency presented.

In American Exp. Co. v. Terry (1915) 126 Md. 254, 94 Atl. 1026, Ann. Cas. 1917C, 650, the court quotes with approval the doctrine that a person who incurs danger and is injured or killed in attempting to save human life is not guilty of contributory negligence, unless his conduct is such as to amount to rashness, entailing almost certain injury.

We hold, said the court in Mobile & O. R. Co. v. Ridley (1905) 114 Tenn. 727, 86 S. W. 606, 4 Ann. Cas. 925, that it is not only a lawful but a laudable act, to attempt to save human life when it is imperiled by great danger, and in a sudden emergency; and in such cases the court will not require the person to stop and hesitate and weigh probabilities until it is too late to make the rescue.

But that one, even to save human life, cannot rashly or recklessly disregard all consideration of his own personal safety, without being charged with contributory negligence, is the rule recognized in Miller v. Union R. Co. (1908) 191 N. Y. 77, 83 N. E. 583; but the case turned on other points.

b. Danger must appear imminent and real, not speculative or imaginary.

In order to justify one in risking his life, or serious injury, in rescuing another person from danger, the danger threatened to the latter must be imminent and real, and not merely imaginary or speculative. Devine v. Pfaelzer (1917) 277 Ill. 255, L.R.A. 1917C, 1080, 155 N. E. 126, 16 N. C. C. A. 167, III. b, infra; Tyler v. Barrick (1916) 178 Iowa, 985, 160 N. W. 273, III. g, infra; Eversole v. Wabash R. Co. (1913) 249 Mo. 523, 155 S. W. 419, III. a, 4, infra; Wilson v. New York, N. H. & H. R. Co. (1908) 29 R. I. 146, 69 Atl. 364, III. 6, infra; Neri v. Atlantic Ref. Co. (1917) 65 Pa. Super. Ct. 444, III. g, infra; Wright v. Atlantic Coast Line R. Co. (1910) 110

Va. 670, 25 L.R.A. (N.S.) 972, 66 S. E. 848, 19 Ann. Cas. 439, III. a, 5, infra.

Before the rescuer is authorized to act on the ground that another is in imminent peril, there must be more than a mere suspicion that accident to some person may follow if he does not act; there must be someone actually in peril, or, at least, the situation must be such as to induce a reasonable belief that some person is in imminent peril; and one who attempts to assert the original negligence of a defendant toward another person who is in peril must show that there was someone in peril, or that he reasonably had the right so to assume or believe. Eversole v. Wabash R. Co. (1913) 249 Mo. 523, 155 S. W. 419, supra.

c. Dangerous condition brought about by

rescuer.

The doctrine applicable to relieve from the charge of contributory negligence one who voluntarily exposes himself to danger in order to rescue another person in a perilous situation does not apply where the rescuer has himself brought about the danger

Thus, where a person negligently not only exposed himself to danger by going upon a high trestle over which a railroad track passed, but encumbered himself with a small boy, exposing him also to the danger, it was held that if such person could have saved himself, after discovering the danger from an approaching train, had he not been so encumbered, and his care for the boy was the chief reason why he did not succeed in protecting himself, he was nevertheless chargeable with ordinary care for his own safety, irrespective of the presence of the boy; and the case stood as though the deceased had been upon the trestle alone, it being no excuse for him, as against the railroad company, that he neglected his own safety to preserve the child, with the care of whom he had voluntarily encumbered himself. Atlanta & C. Air-Line R. Co. v. Leach (1893) 91 Ga. 419, 44 Am. St. Rep. 47, 17 S. E. 619.

And in White v. Chicago (1905) 120 Ill. App. 607, the court said that it is a humane provision of the law that

negligence which precludes a recovery is not imputed to one who voluntarily exposes himself to danger in an attempt to save the life of another; but that there is an exception to that rule, where the party injured is guilty of negligence in bringing about the perilous situation. And it was held that the plaintiff's negligence had created the dangerous situation in which her child was placed, and that she could not, therefore, recover from a municipality for injury caused by falling from planks which spanned a depression 3 feet deep between the roadway and sidewalk, where, instead of taking safe and convenient crosswalks, as she might have done, in going upon an errand, she attempted a short cut across the planks in the middle of a block, and upon her return, when near the planks, the child who accompanied her let go the mother's hand and started over the planks alone, and the mother, in endeavoring to overtake the child, lost her balance and fell, sustaining the injury in question.

The above exception in cases where the rescuer brings about the perilous situation, was held inapplicable, however, in 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 the court held that a mother was not chargeable with negligence, as matter of law, in letting loose of the hand of her four-year-old child while pausing on a city street to speak to a friend; so that she was not necessarily precluded from recovery for injury by being struck by a street car when she was attempting to rescue the child, when she saw it upon the track in front of an approaching street car, on the ground that she was responsible for creating the dangerous situation in which she was injured.

d. Negligence of defendant. The mere fact that one in going to the rescue of another person, who is in imminent peril, is not guilty of negligence, will not, of course, entitle him to recover for an injury sustained in so doing, unless negligence is shown on the part of the defendant in bringing about the dangerous situation, or

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