
    DENNIS HINCHY v. THE MANHATTAN RAILWAY CO.
    
      Damages—when too remote.
    
    The complaint alleged that defendant negligently allowed sparks of fire to escape from one of its locomotives, which sparks entered plaintiff's house, setting fire to his curtains, furniture, etc., and that in his efforts to extinguish the fire, plaintiff’s hand was burnt without any negligence on his part, etc.,—Held, that upon the complaint, as framed, there could be no recovery for the personal injury, the damage being too remote.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    
      Decided December 3, 1883.
    Exceptions taken by plaintiff heard in the first instance at general term. The complaint alleged, that while a train of cars and a locomotive belonging to defendant were passing, “ the defendant carelessly and negligently allowed sparks of fire to escape from its said locomotive, which sparks entered the dwelling-house occupied by the plaintiff, thereby setting fire to the curtains, furniture and property of the plaintiff; that in his efforts to extinguish said five the plaintiff’s left hand without any negligence on his pavt was sevevely burned, and the plaintiff thereby suffered, and still suffers, etc.” The complaint contained no demand of damages to property and on the trial, counsel for plaintiff, in opening the case, stated that no claim was made for damage to property, it having been insured ; that the case was founded upon the injury to plaintiff’s hand sustained in the course of his endeavor to extinguish the fire communicated to the property.
    The counsel for defendant then moved to dismiss the complaint, on the ground that the damage was too remote. The motion was granted, and the plaintiff’s exception to this ruling was directed to be heard, in first instance at general term.
    
      Smith, Allen & Smith, for plaintiff.
    —The complaint states facts sufficient to constitute a cause of action (Rexter v. Starin, 73 N. Y. 601). It was not the necessary result of plaintiff’s efforts to extinguish the fire that his hand should be burned. As in Rexter v. Starin, “ it was for the jury to determine whether the act of plaintiff was a prudent and proper one.” There is nothing in Eckert v. L. I. R. R. Co. (43 N. Y. 502), in conflict with these views.
    ' The damages were not too remote. It was the defendant’s negligence that put the plaintiff in a position in which he was forced to make so perilous a choice, and the defendant is liable for the consequences (Coulter v. Am. M. Un. Express Co., 5 Lans. 68; Buel v. New York Cent. R. R. Co., 31 N. Y. 319). If the plaintiff was injured by acting precipitately and under excitement, which precipitation and excitement were caused by the negligent act of the defendant, he can recover (Vanderburgh v. Truax 4 Den. 464; Scott v. Sheperd, 1 Smith's L. C. 5th [Am. Ed.] 549).
    It was plaintiff’s duty to act as he did. If the plaintiff had made no efforts to extinguish the fire and to prevent damage therefrom, and was in a position so to do, he could not have recovered damage for the destruction of his property (Wharton Neg. § 877; Ill. Cen. R. R. Co. v. McClelland, 42 Ill. 355; Ward v. St. P. R. R., 29 Wis. 144).
    
      Deyo, Duer, & Bauerdorf, for defendant.
    —For a person engaged in his ordinary affairs or in the mere protection of property, knowingly and voluntarily to place himself in a position where he is liable to receive a serious injury, is negligence which will preclude a recovery for an injury so received. But when the exposure is for the purpose of saving life, it is not wrongful, and therefore not negligent, unless such is to be regarded either rash or reckless (Eckert v. L. I. R. R. Co., 43 N. Y. 402). Rexter v. Starin (73 N. Y. 502) is not in conflict with the Eckert case. Plaintiff’s injury was due to his voluntary act, and that the negligence was not the causa causans of the injury to his hands, and consequently is too remote to enable him to recover, see Ryan v. N. Y. Central, 35 N. Y. 
      210; Tonawanda R. R. Co. v. Munger, 5 Den. 255; People v. Mayor, etc., 5 Lans. 524.
    
   Per Curiam.

—The ancient rule that the allegations of a pleading are to be taken as stating the most favorable jjossible case for the pleader, and therefore that a fact, necessary to the cause of action, is not to be considered as-existing if-it be not alleged, must be applied in the present case. There being essential- omissions, no liberality in construing what appears, would cure the. defect. The-plaintiff alleges, “ that in his efforts to extinguish said fire the plaintiff’s left hand, without any negligence on his-part was severely burned.” There is no allegation that at the time he made the effort to extinguish the fire, the fire was spreading to other property than that actually burned, or that there was an appearance of the fire endangering life or other property, or that the effort was made for the purpose of preventing the fire imperiling life or other .property or causing further damage. From the pleading it is to be understood, that the facts of the case would not justify such allegation. It is to be taken that the fire was of a kind that did not threaten injury to person or further-damage, and that the evidence would so show. In the-latter case the party guilty of the negligence is not deemed to be responsible because the negligent act, it is deemed was not the proximate cause of the effort to extinguish.

The allegation that the effort to extinguish was without negligence on his part does -not increase the scope of the pleading, for this averment being equivalent to alleging that the defendant’s negligence was the sole cause of the damage, avails nothing, unless beyond it the pleading adequately states that the negligence was the cause of the damage.

For these reasons the complaint was properly dismissed.

Plaintiff’s exceptions overruled, defendant to enter judgment with costs.  