Provenzo v. Sam

Per Curiam. -Plaintiff has received a substantial monetary award from a jury against both defendants. The proof estab- ■ lished that he was operating his vehicle behind one driven by the defendant Martenson. The car of the latter swerved back and forth, struck a parked car, crossed the street, struck a house and stopped. This defendant, Martenson, previously had had at least three drinks and subsequently plead guilty to a charge of driving a vehicle while her ability to do so was impaired by the consumption of alcohol. Plaintiff stopped his car and, according to his version, saw ‘ ‘ this car coming with lights on quite a distance, and I run across the street.” The car he saw approaching was that of defendant Sam. Plaintiff in dashing across the street in front of that vehicle was struck and injured. There is no proof that defendant Martenson was in any imminent danger from fire, electric wires, or anything else which might cause injury either to her or her vehicle. In passing, we view as highly prejudicial the twice repeated statements of plaintiff—received over objections — that he remarked to his wife that Mrs. Martenson must be sick or must have had a heart attack. At this stage of the incident plaintiff was only a bystander expressing his speculations as to what might have happened. To qualify as a spontaneous exclamation admissible as res gestee under the exception to the hearsay rule the declarant must have been an actor or participant in the occurrence and not merely a spectator. (21 N. Y. Jur., Evidence, § 347, p. 482.) The complaint herein contained allegations which in substance set forth that the acts of defendant Martenson created a situation requiring immediate rescue by plaintiff. At the close of plaintiff’s proof defendant Martenson moved to dismiss on the ground that plaintiff was contributorily negligent and that such [444] negligence upon the facts presented did not become excusable under the so-called rescue doctrine. The motion was denied and the case subsequently was submitted to the jury as to both defendants upon a charge that permitted the jury to ignore the issue of contributory negligence if it found that plaintiff “acted in an emergency situation to rescue Mrs. Martenson.” We conclude that the motion of appellant Martenson to dismiss at the end of plaintiff’s case should have been granted. It follows that the inclusion of the rescue doctrine in the charge as to appellant Sam was reversible error. In this posture of the case it was error to deny the motion of appellant Sam to set aside the verdict. This motion should have been granted because of the erroneous instructions and also on the ground the verdict was contrary to the evidence. In other words, upon the elimination of the rescue doctrine from the case, a finding that plaintiff was free from contributory negligence could not stand. We recognize the general rule that “ one who sees a person in imminent and serious peril through the negligence of another cannot be charged with contributory negligence, as a matter of law, in risking his own life, or serious injury, in attempting to effect a rescue, provided the attempt is not rashly or recklessly made.” (41 N. Y. Jur., Negligence, § 63.) This latter proviso has been elaborated upon in the following language: “It requires more than a suspicion that an accident might happen to justify one to incur obvious danger on the theory that human life or limb is in imminent peril. The rule under consideration is inapplicable where no one is in imminent danger, and the circumstances afford no reasonable basis for believing otherwise.” (65A C. J. S., Negligence, § 124, p. 85.) Moreover, the doctrine will not be invoked where, as here, the threat of peril is merely imaginary and speculative. (Eversole v. Wabash R.R. Co., 249 Mo. 523; 38 Am. Jur., Negligence, § 228, p. 913; Ann. 19 A. L. R. 4, 10; Ann. 158 A. L. R. 189, 193.) It is recognized that danger invites rescue, but here we find-no proof upon which it could be found that a reasonable person could conclude that defendant Martenson was in any imminent or serious peril. Her vehicle had come to rest. There is no evidence that plaintiff by training or experience was in a position to render first aid to an injured person. The difference between a safe crossing of the highway and plaintiff’s prieipitous flight would have been a matter of a few seconds or moments. The circumstances afforded no reasonable basis for plaintiff’s belief that his presence was immediately required at the side of a stalled automobile. The implementation of the rescue doctrine as to the defendant Sam, with the concomí [445] tant freeing of plaintiff from contributory negligence, places an oppressive burden on a motorist proceeding on a highway without knowledge that an accident has happened and that a would-be rescuer is about to run in front of the passing vehicle. Ordinarily, whether negligence is to be imputed to a plaintiff in making a rescue is a jury question (Carney v. Buyea, 271 App. Div. 338, 342) but here we conclude that by no rational process upon the evidence presented could the jury have based a finding in favor of plaintiff on the rescue doctrine. In such event the issue is for the court. (Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241.) Lastly, the court erred in receiving proof that the sample of plaintiff’s blood taken shortly after the accident contained an alcohol content of .225 per cent by weight. Inapplicable in this civil action, of course, is the provision of section 1192 of Vehicle and Traffic Law that makes proof that a person has .150 per cent, or more by weight of alcohol in his blood prima facie evidence of intoxication. The fact, however, that plaintiff had approximately 1% times that percentage of alcohol in his blood is an intriguing piece of evidence as to plaintiff’s condition and motivation in dashing to the assistance of one apparently not in need of immediate rescue. The blood sample, however, was obtained without plaintiff’s express permission and the proof should not be received on another trial. The judgment should be reversed and the complaint dismissed as to defendant Martenson, without costs, and a new trial granted as to defendant Sam, with costs to this appellant to abide the event.