Opinion
December Term, 1899.
Judgment affirmed, with costs.
On the 23d day of June, 1894, on Clinton street in the city of New York, the plaintiff was run over by a horse car of the defendant, and received as she claims serious injuries for which she brings this action to recover damages. At the trial her complaint was dismissed at the close of her case, and she takes this appeal from the judgment entered upon the dismissal. The complaint was dismissed upon the grounds: First, that the plaintiff was guilty of contributory negligence, and, second, that the defendant was not guilty of any negligence. On the afternoon above stated the plaintiff was sitting on the stoop in front of her house, with her little child, between two and three years of age, at her side. As the horse car from which she received her injuries approached at a rapid rate, the child ran away from its mother, and upon the track in front of the car. The mother ran after it, and apparently being unable to reach the child, seized the horses by their heads and attempted to stop them. In this attempt she was unsuccessful and thrown down, and she says was seriously hurt. It is fair to say from the testimony that the child was in imminent danger of death when she went to its rescue. The plaintiff insists that brings this case within Eckert v. Long Island Railroad Company ( 43 N.Y. 502), where it is held that it is not contributory negligence for a person to put himself in a place of peril for the purpose of rescuing another who is in serious danger of injury because of the negligence of the defendant. ( Linnehan v. Sampson, 126 Mass. 506.) That rule is well established in the jurisprudence of this State, and undoubtedly, so far as the question of contributory negligence is concerned, the plaintiff brought herself within it and she would have been entitled to go to the jury upon that question, if there had been any evidence from which the jury might have found that the defendant was guilty of negligence by reason of which her child was in peril. But we have searched the case carefully to find any evidence which might have warranted the jury in concluding that the driver of the car was guilty of any negligence, and find none. The only inference to be drawn from the evidence was that the child ran upon the track unexpectedly and so close to the rapidly-approaching car that the driver had no opportunity to take any steps to stop the car, or to save the little one from injury. No negligence can be predicated from these facts, and for that reason the judgment dismissing the complaint was correct and must be affirmed, with costs. Van Brunt, P.J., Barrett, Ingraham and McLaughlin, JJ., concurred.