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1. A railway company which negligently throws a passenger from a crowded car on a trestle is liable for injury to a relative who, in going to his rescue, falls through the trestle.

[See note on this question beginning on page 4.] Negligence injury to rescuer effect of time for choice.

2. That one going to the rescue of another, put in peril by the negligence of a third, has time to make deliberate choice before incurring the peril, does not destroy the liability to him of the negligent person.

Trial

jury

negligence of rescuer. 3. The jury must determine the negligence of one who in the darkness goes upon a trestle to rescue one who has fallen from a railroad car, when the overhang of the car beyond the tracks and ties of the trestle makes it probable that the body did not remain on the trestle, but is beneath it. [See 20 R. C. L. 132.]

APPEAL by plaintiff from an order of the Appellate Division of the Supreme Court, Fourth Department, overruling his exceptions and directing judgment on the verdict in favor of defendant, in an action brought to recover damages for personal injuries, for which it was alleged to be responsible. Reversed.

The facts are stated in the opinion Mr. Hamilton Ward, for appellant: It was error to hold as matter of law that the first accident, which resulted in the fall of Herbert Wagner, was not the proximate cause of the plaintiff's 19 A.L.R.-1.

of the court.

accident, and to refuse to submit to the jury the question of defendant's negligence in causing the first accident.

Gatens v. Metropolitan Street R. Co.