passer, and the verdict in her favor for the injury she suffered in trying to save the little children was sustained.

In Gibney v. State, 137 N. Y. 1, 33 Am. St. Rep. 690, plaintiff, with her husband and infant son, was crossing a bridge over the Erie canal; the son fell into the canal through an opening in the railing of the bridge, which had been left unguarded; the father plunged into the canal to rescue him, and both were drowned. Plaintiff recovered for the damages she had sustained, and in affirming the judgment of the lower court it was held that, while the immediate cause of the peril to which the father naturally and instinctively exposed himself was the peril of the child, the cause of the peril in both cases might be attributed to the culpable negligence of the state in leaving the bridge in a dangerous condition. In this case, Eckert v. Long Island R. R. Co., 43 N. Y. 503, 3 Am. Rep. 721, was again approved.

It was held in Peyton v. Texas etc. Ry. Co., 41 471 La. Ann. 861, 17 Am. St. Rep. 430, that the law has so great a regard for human life that it will not impute negligence to an effort to preserve it, if the effort is made with a reasonable regard for the rescuer's own safety, and where negligence on the part of the defendant is shown, the negligence of the person in danger cannot be imputed to the rescuer. In the case before us, under the clearly established facts, no negligence can be imputed to Walker.

The question of the contributory negligence of a rescuer is considered in Linnehan v. Sampson, 126 Mass. 506, 30 Am. Rep. 692, where it was contended on behalf of the defendant that the calls of humanity did not excuse him. It was held, however, that the question whether the plaintiff's conduct on the occasion of the injury was wanting in reasonable prudence and caution, in view of all the circumstances, was properly submitted to the jury as a question peculiarly for them to decide. "They were to consider all the circumstances, and, among other things, that the life of a fellow creature was in extreme danger; but they must have understood that reasonable prudence and caution were elements in the case which plaintiff must prove.

The emergency was sudden, allowing but little time for deliberation. Some allowance might well be made for the confusion of the moment. . . . . The law does not require cowardice or absolute inaction in such a state of things. Neither does it require in such an emergency that the plaintiff should have acted with entire self-possession, or that he should have

Am. St. Rep., Vol. LXXVIII-53

taken the wisest and most prudent course, with a view to his own self-preservation, that could have been taken. He certainly may take some risk upon himself, short of mere rashness and recklessness."

In Donahoe v. Wabash etc. Ry. Co., 83 Mo. 560, 53 Am. Rep. 594, it was ruled that the negligence of the company as to the person in danger was to be imputed to the company with respect to him who attempted the rescue.

It is not negligence per se for one to voluntarily risk his own safety or life in attempting to rescue another from impending danger. The question whether one so acting should be charged with contributory negligence in an action brought by him to recover damages for injuries received in attempting the rescue is one of mixed law and fact, and should be submitted to the jury upon the evidence, with proper instructions from the court. While one who rashly and unnecessarily exposes himself 472 to danger cannot recover damages for injuries thus brought on himself, yet where another is in great and imminent danger, he who attempts a rescue may be warranted by surrounding circumstances in exposing his limbs or life to a very high degree of danger. In such case he should not be charged with the consequences of errors of judgment resulting from the excitement and confusion of the moment; and if he did not act rashly and unnecessarily expose himself to danger, and is injured, the injury should be attributed to the party that negligently or wrongfully exposed to danger the person who required assistance: Pennsylvania Co. v. Langendorf, 48 Ohio St. 316, 29 Am. St. Rep. 553.

The late and well-considered case of the Maryland Steel Co. v. Marney, 88 Md. 482, 71 Am. St. Rep. 441, sustains the views expressed in the foregoing authorities, and by their "aid" it was again ruled that one who voluntarily incurs peril caused by the negligence of another, in order to save the life of one imperiled by the same negligence, is not debarred from recovery upon the ground of his own contributory negligence.

Recognizing the manifest correctness of the views expressed in the foregoing and other cases, the best text-writers have properly adopted them as the law for guidance of courts and juries. When one risks his life, or places himself in a position of great danger, in an effort to save the life of another, or to protect another who is exposed to a sudden peril or in danger of great bodily harm, such exposure and risk for such a purpose are not negligent. The law has so high a regard for human life that it will not impute negligence to an effort to

preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons: Beach on Contributory Negligence, sec. 15. One who imperils his own life for the sake of rescuing another from imminent danger is not chargeable, as a matter of law, with contributory negligence, and if the life of the rescued person was endangered by the defendant's negligence, the rescuer may recover for the injuries which he suffered from the defendant in consequence of his intervention: Shearman and Redfield on Negligence, sec. 85.

In view of what we have said, and in the light of the authorities approvingly cited, this case was improperly disposed of by the court below, and must be sent back for another trial, that a jury may pass upon the question of the city's negligence and 478 determine whether Corbin, under the circumstances, acted with a due regard for his own safety, or so rashly and imprudently that his surviving mother cannot recover for the loss she has suffered. In passing upon this latter question it will be remembered, on the one hand, that, looking down and seeing the prostrate and motionless form of Walker, he may have been sufficiently warned not to descend into the danger, and his conduct may have been so rash and imprudent that, in the judgment of a jury, there ought not to be a recovery; on the other, it will not be forgotten that he had no time for deliberation, and was bound to act, if at all, instantly, as a moment's delay might have made his going down too late; and it will be still further remembered that, shortly before the day of his death, others had gone down into the trenches and returned unharmed; that the very boy whom he would have saved came back unaided from the bottom of the hole, and that those who went down for him came up uninjured. What the verdict of the jury should be it is not for us to say, and we do not pretend to intimate. Our duty is simply to direct that, intelligently instructed, they pass upon the questions involved. Theirs will be to render a just finding.

It is finally contended on behalf of the city that it is not liable, because the alleged negligence was that of an independent contractor. As to this defense it need only be said that, under the evidence offered by the city itself, it is without merit. For the reasons given the judgment is reversed and a venire facias de novo awarded.

MITCHELL, J., dissenting. I cannot see that the city was guilty of any negligence that contributed to the accident. It

had obstructions around the ditch sufficient to indicate that the place was dangerous. If one had fallen in at night, the obstructions might be held insufficient, and it may even be admitted, so far as this case is concerned, that if one going down in daytime with only the apparent risk of the descent before him had ignorantly encountered the gas, he might have had an action for negligence in failing to warn him of the concealed danger. But any such negligence is wholly irrelevant to this case. Corbin saw the danger from the condition of the boy Walker, went into it knowingly, and 474 would not have been deterred by a warning placard, however specific.

There is, therefore, in my view only one question in the case, and that is whether the circumstances exonerated Corbin from the ordinary legal consequences of his act. I cannot see how the goodness or humanity of his motives can either exempt him or transfer the risk he ran to the city. It is a clear case for the application of the principle, "Volenti non fit injuria."

If a known danger is encountered in the performance of a specific duty, as in the case of risks taken by a fireman or a policeman, a different question is presented, but there was nothing of this kind here, for Corbin was a pure volunteer.

I have read the opinions cited by my brother Brown with close attention to discover from them some recognized principle of law to sustain the results arrived at; but I find nothing beyond an emotional basis of admiration for heroism, very creditable to human nature, but having no proper place in the administration of justice.

I would therefore affirm this judgment both on the absence of any negligence by the city which contributed to the accident, and on the voluntary character of Corbin's assumption of a known risk.

Green, C. J., and Fell, J., join in this dissent.

NEGLIGENCE-RESCUING ANOTHER.-One who voluntarily incurs danger caused by the negligence of another, in order to save the life of one imperiled by the same negligence, is not debarred from recovery for injury thereby received, upon the ground of contributory negligence: Maryland Steel Co. v. Marney, 88 Md. 482, 71 Am. St. Rep. 441; Pennsylvania Co. v. Lagendorf, 48 Ohio St. 316, 29 Am. St. Rep. 553. The law has so high a regard for human life that it will not impute negligence to an effort to preserve life, unless made under circumstances which, in the judgment of prudent persons, constitute rashness: See the monographic note to Gilson v. Delaware etc. Canal Co., 36 Am. St. Rep. 849.

SEWERS. THE LIABILITY OF MUNICIPALITIES respecting sewers is considered in the monographic note to Chalkley v. Richmond, 29 Am. St. Rep. 737-744.

MUNICIPAL CORPORATIONS-OPENING IN SIDEWALK -NUISANCE-NEGLIGENCE.-An opening in the sidewalk of a public street of a city, if properly constructed, is not a nuisance, but persons negligently using it are liable for injury resulting therefrom, and a person thus injured may recover of the persons guilty of such negligent use or the city, or both.

AGAINST,

MUNICIPAL CORPORATIONS - JUDGMENT WHEN CONCLUSIVE ON PARTY LIABLE TO CITY.-If a person injured by reason of the negligence of a third person, in the use of an opening in a sidewalk in a public street, not in itself a nuisance, has sued and recovered therefor from the city, the latter has its action over against such person guilty of the negligence, and he, having been duly notified to defend the original suit, is bound by the judgment therein.

JUDGMENTS-RES JUDICATA-PARTIES.-A judgment recovered against a municipal corporation for injury caused by a defect or obstruction in the highway is conclusive evidence of its necessary facts and conditions, in a subsequent action by the mu nicipality against a third person, the author of the defect or nulsance, who is liable over and who was notified of the first suit.

J. L. Jenks, city solicitor, for the plaintiff.

A. Green, for the defendant.

18 STINESS, J. The defendants are the proprietors of a store on Main street, in the city of Pawtucket, from the cellar of which they operate a freight elevator to the sidewalk in front of the store. The elevator well is covered by an iron grating, opening from the center in two parts on hinges at the sides, at right angles from the front of the building. On the 26th of November, 1889, while they were using the elevator,