
    Annie Schoenfeld, an Infant, by Adolph Schoenfeld, Her Guardian ad litem, Appellant, v. The Metropolitan Street Railway Co., Respondent.
    (Supreme Court, Appellate Term,
    March, 1903.)
    Negligence — In starting a street car — Passenger holding on to handrail after the car started — Conduct of her escort in an emergency — Intervening superseding cause.
    A street car conductor is guilty of negligence where he without any warning starts his car while a young girl, who has grasped the hand-rail with her right hand and has one foot on the step of the car, is trying to board it. °
    
    It is not negligent for her to keep hold of the hand-rail, where the car is proceeding rapidly, even though it causes her to be dragged half a block.
    The fact, that her escort, who had been running after the car, then caught up with it and drew her from it, does not, if his negligence be imputed to her, make her negligent as matter of law, although he may not have exercised "the best judgment in the emergency, and this rule is particularly applicable where it appears that substantially all her injuries were on her right side and were caused by her clinging to the hand-rail with her right hand.
    The jury, and not the court, must determine whether any of her injuries were due to her escort’s act, whether he acted rashly, and also whether his act amounted to an intervening cause superseding the effect of her own negligence, if any.
    Appeal from a judgment of the City Court of the city of New York, entered upon the dismissal of the complaint, directed by the court after a trial before it and a jury.
    M. P. O’Connor (J. Brownson Ker, of counsel), for appellant.
    Henry A. Robinson (F. A. Gaynor, of counsel), for respondent.
   Giegerich, J.

The action is brought to recover damages for personal injuries, alleged to have been caused by the defendant’s negligence. The answer is a general denial and that the accident was due to the contributory negligence of the plaintiff.

The testimony given for the plaintiff tended to show that at the1 time of the accident, which occurred about one o’clock in the morning on the 30th of September, 1901, the plaintiff, then nineteen years of age, was returning to her home in East Third street, near Avenue O, in the borough of Manhattan, New York city, accompanied by one Morris Levy and two other companions; that the party alighted, from a Fourth avenue car, on which they had been passengers, at the comer of Stanton street and the Bowery, where they got transfers to the defendant’s east-bound Stanton street car; that, after waiting there for about twenty minutes, such car came along while it was raining very hard; that the car stopped at the southeast comer, and, after two couples, who were not of plaintiff’s party, had gotten on the car by the rear platform, the plaintiff, who was in advance of her party, started to board the car; that she grasped the hand-rail of .the car with her right hand and had gotten one foot on the step when, without any warning to her, the conductor rang the bell and the car suddenly started forward, causing her to lose her balance, throwing her, as Mr. Levy testified, “ behind the. car rail,” and dragged her for over half, a block in the dirt and mud; Mr. Levy, in the meantime, running along with the car, trying to overtake it and calling to the oonduetor to stop. Finally, seeing that the conductor was not going to do so, he caught hold of the plaintiff and drew her from the car.

When .the plaintiff rested, the" complaint was dismissed, because of the contributory negligence - shown by the evidence against the plaintiff, and also of her escort,” the trial court stating that the allegations of the- complaint had not been sustained. The plaintiff took an exception, and, from the judgment entered upon such dismissal, she has appealed to this court. In considering whether the complaint should have been dismissed, the plaintiff is entitled to have the' benefit of the facts most favorable to her which the jury would have been justified in finding upon, the evidence. Smith v. Metropolitan Street Ry. Co., 7 App. Div. 253; Costello v. Third Ave. R. R. Co., 161 N. Y. 317. Applying this rule to the present case, it is clear that the trial court was not justified in dismissing the complaint.

The defendant' was clearly negligent in not giving the plaintiff a reasonable time to board the car, and it cannot be held, as a matter of law, that the plaintiff was guilty of contributory negligence in holding on to the hand-rail of the car, which the evidence shows moved rapidly, after it had been suddenly started and while she was being dragged along. Fay v. Metropolitan St. R. Co., 62 App. Div. 51. The plaintiff’s position was perilous and how much longer she would have been able to retain her hold on the car is not disclosed. The evidence shows that the driver made no effort to stop the car, and that, unless some cause intervened, the plaintiff, in the natural course of things, would have been forced to loosen her hold and fall to the ground. The plaintiff was in imminent danger of serious injury, and, under the circumstances, it would not be fair to hold, as'matter of law, that negligence may be imputed to her because of the effort which Mr. Levy made to rescue her.

I have not been able to find any case in this State directly in point. It has been held by the Pennsylvania courts, however (North Pennsylvania R. R. Co. v. Mahoney, 57 Pa. St. 187), that where a child was, for the purpose of protection, caught up in the arms of a person to whose care she had not been intrusted, and was, through that person’s lack of presence of mind, injured by an engine which was being negligently backed through a crowded portion of a city, the railroad company was liable nevertheless, and that such act was not contributory negligence so as to discharge the latter. Even if Mr. Levy’s'act be imputable to the plaintiff, it was nevertheless for the jury, and not the trial court, to determine whether or not the act in question was one which would constitute rashness in the judgment of a prudent person. This is the rule where one, by the negligence of another, is so placed that he must choose, on the instant and in the face of grave and impending peril, between two hazards (Roll v. Northern Central R. Co., 15 Hun, 496; Twomley v. C. P. N. & E. R. R. Co., 69 N. Y. 158); and also where one voluntarily encounters imminent danger, caused by the negligence of another, for the purpose of preserving human life or saving another from apprehended serious injury. Eckert v. Long Island R. R. Co., 43 N. Y. 502; Manthey v. Rauenbuehler, 71 App. Div. 173. The principle underlying all these and similar cases is, that a person, who, through the negligence of another, finds himself in a position of danger, cannot be held guilty of contributory negligence for failure to act in the emergency in the best way to avoid the danger. Therefore, if an error of judgment by the plaintiff cannot defeat a recovery, then obviously a like error on the part of a third person should not have that effect.

If the conduct of such third person is material to be measured, no more should be required of him than of the plaintiff herself, and, extending the doctrine of the decisions above cited of courts of this State tb the present case, it would seem that the defendant will not be absolved from responsibility unless the act of Mr. Levy in thus attempting to rescue the plaintiff from her perilous position was one which would constitute rashness-in the judgment of a prudent person. This, however, was a question for the jury to determine. It was also for them to say whether or not any of the injuries complained of are the proximate result of the defendant’s negligent act, or whether any of them were brought about by some intervening force or agency (Jacksonville, Tampa & Key West R. Co. v. Peninsular Land, Transportation & Manufacturing Co., 17 L. R. A. 33, 56); in other words, whether any of such injuries were due solely to Mr. Levy’s act, and whether, under the circumstances, his act would be deemed an intervening cause, which would break the connection between the defendant’s negligence and the injuries received, if any,- after the plaintiff’s hold upon the car was loosened. While it is true that an intervening cause may exonerate the defendant, yet it is not. every intervening cause that will have this effect.

In Shearman & Eedfield on Negligence (5th ed.), it is stated (§ 32): “In order to excuse the defendant, however, this intervening cause must be either a superseding or a responsible cause; It is a superseding cause, whether intelligent or not, if it so entirely supersedes the operation of the defendant’s negligence that it alone, without his negligence contributing thereto in the slightest degree, produces the injury. It is a responsible'one, if it. is the culpable act of a human being, who is legally responsible for such act. The defendant’s negligence is not deemed the proximate cause of the injury, when the connection is thus actually broken by a responsible intervening cause. But the connection is not actually broken, if the intervening event is one which might, in the natural and ordinary course of things, be anticipated as not entirely improbable, and the defendant’s negligence is an essential link in the chain of causation. Of course, the very definition of a superseding cause implies that the defendant’s negligence cannot be the cause of the injury.”

As a result of the foregoing considerations, it is clear that the trial court erred when it imputed, as matter of law, negligence to the attempt of Mr. Levy to extricate the plaintiff; but, aside from this, it appears from the record that substantially all the injuries received by the plaintiff were on her right side, and were caused by being dragged along while clinging to the hand-rail of the car with her right hand. For these, the plaintiff, if ultimately successful, would, in any event, be entitled to- a fair and reasonable compensation.

It follows from these views that the plaintiff’s evidence was sufficient to carry the case to the jury, and, therefore, the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Freedman, P. J., and Gildersleeve, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  