Summary
In Wardrop v. Santi Moving Express Co. (233 N.Y. 227), where, as in the case at hand, the plaintiff was injured in a vain attempt to save his own motor car from damage, the opinion (per ANDREWS, J.) states the rule which we think is decisive here on the question of the plaintiff's negligence (p. 229): "Under these circumstances we cannot say that he was guilty of negligence as a matter of law.
Summary of this case from Rague v. Staten Island Coach Co.Opinion
Argued March 7, 1922
Decided April 18, 1922
Albert Ritchie for appellant. Thomas H. Rothwell for respondent.
The plaintiff's car was parked next the curb on a narrow street. It faced the south. He himself stood upon the sidewalk near by. Opposite, a private driveway ran at right angles up a grade from the street. Past this car going north came a heavy truck some twenty-two feet long belonging to the defendant. It was necessary to turn it so that it also should face south. It, therefore, was backed into this driveway and stopped. It then faced the plaintiff's car and its fender was but three and one-half or four feet from it. The chauffeur of the truck was at the wheel. He had two helpers with him. They were on the ground beside him.
Under these circumstances it would seem that if the chauffeur of the truck started forward and attempted to swing to the south a collision was almost inevitable. At least the jury might infer that such an act would be negligent, yet this is precisely what the chauffeur did. Perhaps the explanation of his act is given by himself when he says he was "kind of dizzy, trying to control my car because the hill was very steep." At any rate the car came forward very slowly. Apparently the chauffeur endeavored either to stop or to turn in time. One of the assistants was trying to help by blocking the wheels. It occurred to Wardrop that he, too, might help by seizing the bumper. The same thing occurred to the other assistant. Mr. Wardrop, therefore, took hold of the bumper at the right-hand side of the car outside of the wheel and the assistant seized the bumper on the left-hand side. They might aid the man who was steering. The attempt was unsuccessful. The truck continued on and a collision occurred. In this collision Mr. Wardrop's leg was caught between the hub of the wheel of the truck and his own car and he was seriously injured.
Under these circumstances we cannot say that he was guilty of negligence as a matter of law. That is not always the rule when an effort is made to protect life or property from injury. Each case must depend upon its own peculiar facts. Was the act resulting in the injury reasonable under all the circumstances? Was the end to be gained fairly commensurate with the risks incurred. Undoubtedly more risks may be taken to protect life than to protect property without involving the imputation of negligence, but the rule is that a reasonable effort may be made even in the latter case. We think that whether under all the circumstances what was done by Mr. Wardrop was or was not reasonable is a question of fact for the jury.
The judgment appealed from must be reversed and that of the trial court reinstated, with costs in this court and in the Appellate Division.
HISCOCK, Ch. J., CARDOZO, POUND and McLAUGHLIN, JJ., concur; HOGAN and CRANE, JJ., dissent.
Judgment accordingly.