This case has already been before this court upon appeal, and will be found in 133 N. Y. 366, 31 N. E. .222. The facts are so fully set forth there that a recital of them now I think is unnecessary, as, with the exception hereinafter stated, they appear to be substantially the same as they appeared upon the former trial and hearing. Upon the second trial a witness named Powers was sworn, who did not testify upon the former trial. His testimony, if true, relieves the deceased from any charge of suicide. Upon the former trial the engineer testified that he saw Williams start to go upon the track. . He says that if the man had kept on walking he could in all probability have crossed in safety, but that -he “squatted down,” as in the position of kneeling. Powers’ testimony is to the effect that, instead of deliberately squatting down or kneeling, Williams slipped down and fell. It seems to me that •constitutes the only substantial difference in the facts as they appeared upon the first trial and as they appear now. Assuming Powers’ version to be the correct one, the question- arises as to whether there is sufficient in the case to warrant its submission to a jury. The theory of the plaintiff appears to be that Williams lost his life in an endeavor to warn or save two intoxicated persons from danger. The only one of the two persons declared by Powers to have been intoxicated who was sworn upon the trial swears that *350neither he nor his associate was intoxicated, and Powers only saw them at a distance of 90 feet or more, on a misty evening. While none of the witnesses sworn knew anything about Powers’ presence, and while his testimony as to what took place is in conflict with that of all the other witnesses sworn upon the trial, yet it must be assumed that the jury found his version of the transaction the true one.
For the purpose of disposing of this case as it now appears, it will be assumed that the deceased, instead of deliberately or voluntarily losing his life, lost it in an endeavor to save others from death or danger; although as a matter of fact the witness Powers says that the two persons Williams stopped to warn were not in danger, and the testimony of one of the persons who was so warned negatives any idea that they were in danger, and indicates that they were fully as able to take care of themselves as was the deceased, and were equally aware of the perils of the place. I do not think that exposure of one’s self to danger for the purpose of saving the life of another is such a “voluntary exposure to unnecessary danger,” etc., as to release the defendant from liability upon its policy. The law has so high a regard for human life that it will not impute negligence to any effort to preserve it, unless made under circumstances constituting rashness in the judgment of prudent persons. Eckert v. Railroad Co., 43 N. Y. 502. Efforts to save the lives of others are to be commended and encouraged, and not prohibited either by statute or contract, and dangers necessarily incurred in such efforts may be properly and rightly incurred, even under the terms of a policy like that issued by the defendant in this case; but the assured is not justified in doing unnecessary things, or taking unnecessary risks, to save the life or limbs of others. And while the court will not attempt in cold blood to scrutinize too carefully acts done upon the spur of the moment in an endeavor to protect others, or measure acts of heroism by rule of thumb, still, when it appears that the assured has been injured or lost his life by doing unnecessary or reckless things, it cannot justify him under the plea that they were done to save human life. What was done by the deceased in this case does not appear to have been done in a hurry, or under any excitement, or under conditions where it might be inferred that he had become confused, and that?therefore, allowance should be made for his acts, as would be done in the case of one who suddenly finds himself in danger, where the court will not scrutinize too carefully the measures that he takes to extricate himself therefrom, and will not hold him responsible because, under such conditions, he did not choose the best. Here he saw the coming danger, and attempted to warn others of it. He did not hurry to do it, but did it quietly and deliberately. The train did not come upon him suddenly and without his knowledge. It came with the ringing of bells, with the glare of the headlight upon the engine, and was seen by him approaching. There was no occasion for him to get in the way, and there was ample time for him to get out of the way. The account of the witness Powers is not entirely clear, but any view that we may *351take of his testimony shows that the deceased was guilty of negligence not to- be justified by the plea of an endeavor to save others from danger. Assuming that they were in danger, what was done by the deceased, which resulted in the sacrifice of his life, was wholly unnecessary.
The witness Volger, the only one of the persons warned by him, who was sworn upon the trial, says that when he first saw the deceased, he was about 200 feet away.
“We looked away ahead and saw him. Then he was on the other side of the railroad. Then he crossed the track, and was coming towards us, and we met him by Smith’s gate. He says: ‘Boys, look out for the cars. May be the engine will catch you.’ He says: ‘Look out, boys; the engine will catch you.’ August said: T am not afraid. My life is insured.’ He stopped when he said that. We did, too. Nothing else was said there. He started east, and we west.”
The witness at another point testifies that they went on across the railroad tracks. The cars were going slower and slower, the bell ringing, and then they stopped. That they thought that something must be the matter. That they went to the place where the train had stopped, and found the deceased injured upon the rails. Powers’ version of what took place is:
“That he was going up the street which the railroad crosses, when he saw two other men going up the street. That they were going westward. They got up near the Church street crossing, and stopped. There was another man coming down,—coming east,—and they stepped on the railroad. As he stepped off, they stopped again, and he turned and said something to them. I don’t know what it was. Then they stepped off, and he followed them. He didn’t follow them, but just turned around, and as he turned around he stood there probably half a minute, and all at once he looked down, and motioned as though he was going to turn around, and he saw the locomotive, and started to get out of the way and fell. He slipped; he started to take a step, and slipped down and fell.”
Again he says:
“The gentlemen met these two men on the east side of the railroad track. I could not say how far from the east rail. It might have been three or four feet; it might not have been so far; that is as near as I can fix it. I should say I was distant from there in the neighborhood of eighty or ninety feet.”
And again:
“Mr. Williams, when they were within a foot of the railroad, was just across on the west side of the track, coming east He came across the railroad and met them as they were on the east side of the railroad track. He met them when they were about a foot from the railroad track, or on the track.”
He further stated that at the time the deceased met the Dutchmen the cars were probably 30 or 40 feet south on the track going north; that the Dutchmen and the deceased stopped and talked with each other while the cars were coming up, or, as he explained it, “they just turned around and spoke.” He states that when Williams met these two men they were on the east side of the railroad track, within a foot or two of the rail, the cars being forty feet from them; that the Dutchmen were going westward; “that after the Dutchmen stepped off the track he turned to go off the track,— *352turned southward,—and he saw the cars, and he whirled and started to run and get out of the way.” Taking this testimony, it would appear that the deceased, for the purpose of warning the two Dutchmen, so called, when he saw them near the railroad track, but not on it, himself stepped right on the track between the rails, when a train of cars was approaching, distant only 30 or 40 feet from Mm, to warn them of their danger. It is true that the train was going at a slow rate of speed, estimated from four to six miles an hour; but if it was dangerous to them it was dangerous to him. For the purpose of warning them of their danger there was no occasion for him to step in front of an approaching engine, and talk with them, it was not necessary for him to stop, it was not necessary for him even to cross the track for the purpose of warning; and if he had crossed the track there was no occasion for his pausing to talk with men who were not upon it. It does not present the case of a person prostrate upon the railroad track, and the rescuer going thereon for the purpose of lifting or dragging him off. Here is a mere verbal warning being given, which could just as well have been given across the track as upon it, or, in passing by, across the railroad track, without stopping. While, as stated before, it is not well to hold too closely as to what is or what is not necessary to be done in an effort to save the life of another, still what is alleged to have been done in this case was so wholly unnecessary, and so grossly negligent, that even under a liberal construction as to the allowance to be made for efforts made by an assured in endeavoring to save another from death or injury I cannot hold that in this case he did not necessarily and negligently expose himself to unnecessary danger within the meaning of the defendant’s policy issued to him. For these reasons I think the judgment should be reversed, and a new trial granted; costs to abide the event.
MAYHAM, P. J.I am inclined to hold that whether or not the assured “unnecessarily and negligently exposed himself to unnecessary danger within the meaning of the policy” was, under the circumstances of this case, a question of fact for the jury, with whose findings the appellate court should not interfere. The deceased had time to cross the track before the train reached him, and there was evidence that he slipped and fell; This the jury might have found.