Plaintiff was severely injured under the circumstances which invoked the rescue doctrine against defendant Martenson and ordinary negligence against defendant Sam. The majority rejects the rescue doctrine on the ground that the threat of peril was “merely imaginary and speculative ” and has ordered a new trial as to defendant Sam on the ground that the verdict against her is against the weight of the evidence.
Plaintiff was driving his pickup truck, in which his wife was a passenger, in a westerly direction, when he observed the Martenson automobile, which was traveling in front of him, swaying back and forth across the road. Plaintiff and other witnesses saw it hit a .snow bank, cross back to the highway, continue to zigzag from side to 'side, strike a parked car, swerve left across the road and finally come to rest a city block beyond on the front lawn of a house it struck on the opposite side of *446the road with the driver “ slumped over the steering wheel ”. Plaintiff remarked to his wife, as they watched this erratic course of the defendant Martenson ear, that “ This person must be sick, must have a heart attack Plaintiff immediately stopped his vehicle on the north side of the highway, waited a few moments for a truck to pass, looked in front of him to the west, saw lights of a car traveling easterly ‘ ‘ quite a distance ” away and ran across the street to assist the driver of the Martenson car. Defendant Sam testified that visibility was good but she did not observe plaintiff until he was about 40 feet in front of her car at which time he was about eight feet from the south curb. Plaintiff had almost crossed the road when he was struck by the right fender of defendant Sam’s car. His head was two or three feet from the south curb after he was hit.
Defendant Martenson. testified that she had three drinks of alcoholic beverage prior to the accident, that she was rendered unconscious when she struck the parked car and remembered nothing else until she regained consciousness after her automobile came to rest on the lawn of the house. She was charged with driving while impaired and plead guilty to the charge. Plaintiff contends that defendant Martenson’s negligence placed her in a situation where in his judgment rescue was demanded, that his own rescue attempt was not rash and that defendant Martenson’s negligence was a proximate cause of his injuries.
The rescue doctrine was early recognized in this State in Eckert v. Long Island R.R. Co. (43 N. Y. 502). That case laid down the principle that rescue is foreseeable in a perilous situation and that the negligent person is liable to the rescuer. In Eckert we find the frequently cited statement concerning the standard of conduct of a rescuer as to contributory negligence in the following language (p. 506): “ 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.” This doctrine was followed in Gibney v. State of New York (137 N. Y. 1); Miller v. Union Ry. Co. (191 N. Y. 77, 80) and became settled law in the landmark decision in Wagner v. International Ry. Co. (232 N. Y. 176). The obligation of the negligent party is summed up with great clarity in the language of Judge Cardozo (p. 180): “Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the *447range of the natural and probable * * * The risk of rescue, if only it be not wanton, is born of the occasion.”
The issue of ‘ ‘ whether plaintiff in going- to the rescue, as he did, was foolhardy or reasonable in the light of the emergency confronting bim, were questions for the jury” (Wagner v. International Ry. Co., supra, p. 182). This court in Carney v. Buyea (271 App. Div. 338, 342) clearly asserted the principle to be followed here, that the determination of defendant Martenson’s negligence, its relation to proximate cause, and whether plaintiff’s actions were foolhardy or reasonable, were issues for jury resolution. The applicability of the rescue doctrine depends upon the peculiar facts of each case. Whether the act of rescue was reasonable under all the circumstances in the emergency created by defendant Martenson, and reasonably commensurate with the risk incurred in the rescue, are questions of fact which the jury in the case at bar found in plaintiff’s favor. The trial court properly charged that the question for the jury was whether the defendant Martenson’s negligence created a situation which ‘6 would cause the ordinary prudent person under the same circumstances to believe that she was in some actual danger or in the need of immediate assistance ”. Surely an unconscious woman at the wheel of'an automobile which strikes another automobile and continues back and forth across the highway and ends up on a lawn next to a house demonstrates peril; also there was the apprehended danger of fire and explosion following the automobile’s collision with the house.
Furthermore, impassionate objectivity is not required of the rescuer (65A C. J. S., Negligence, §§ 122-124). I would not limit the rescue doctrine to instances of actual peril, and deny its benefits to one who acts on appearances which would lead a reasonable person to believe that rescue was necessary, simply because it subsequently turns out that circumstances were not as they seemed and danger in fact was nonexistent. The rescuer is entitled to act as a reasonably prudent person under the circumstances as they are presented to him. One who comes forward to lend aid, on the basis of appearances which give him the reasonable impression of imminent danger, should not act at his own peril. No decision in this jurisdiction so requires and other jurisdictions have held the rescue doctrine applicable when danger is apparent though unreal (Cote v. Palmer, 127 Conn. 321; Highland v. Wilsonian Inv. Co., 171 Wash. 34). (For a good discussion of cases decided under the rescue doctrine, see Ann. 158 A. L. R. 189 and Ann. 4 ALR 3d, pp. 558-564.)
*448I cannot concur with the majority view that the verdict against defendant Sam is against the weight of the evidence. She testified that visibility was good and she was traveling but 30 miles per hour when she saw plaintiff about 40 feet away. She did not sound her horn, and although she said she applied her brakes, she hit plaintiff, when he had nearly reached the curb, with such force that he was tossed into the air and onto the hood of her car. Plaintiff was confined to the hospital for about 10 weeks- and received serious permanent injuries. The charge of the court as to contributory negligence did not clearly distinguish the difference between the duty owed by plaintiff to defendant Sam and the duty owed to defendant Martenson. As to the latter, the rescue doctrine would require only that plaintiff be not guilty of rash or reckless conduct, in the judgment of ordinarily prudent persons. As between plaintiff and defendant Sam, the basic and ordinary rules of negligence apply. However, neither of the defendants took a single exception to the charge or made any request to enlarge or refine it. That the defendants were satisfied with the charge is clear from their failure to raise any question about it on this appeal. Thus, the question of defendant Sam’s negligence properly became a matter for the jury and I would not disturb its determination. We should not set aside the jury’s verdict and order a new trial unless there is an “ ‘ overwhelming preponderance ’ ” of evidence against it, so great that a jury could not have reached the verdict on “ ‘ any fair interpretation of the evidence’” (Rapant v. Ogsbury, 279 App. Div. 298, 300).
I agree with the majority’s statement as to the plaintiff’s spontaneous exclamation that there is some authority for the view ‘ ‘ that the declarant must have been an actor or participant in the occurrence in order to render his declaration admissible as res gestae under an exception to the hearsay rule ” (21 N. Y. Jur., Evidence, § 347, p. 482). Certainly no one was more of an “ actor or participant” in this rescue act than the plaintiff. In the final analysis the test is whether the rescuer acted as a reasonably prudent person under all the circumstances and the jury, as the judges of this fact question, determined that he did so act.
It should be noted that the introduction of evidence of the alcoholic content found in plaintiff’s blood analysis which was taken solely for use in administering transfusions to plaintiff, was improper and highly prejudicial. Plaintiff was a pedestrian when struck and the only question is how he conducted himself as he ran across the street.
*449No claim is made that the verdict is excessive, and I would affirm the judgment as against both defendants.
Williams, P. J., Bastow and Henry, JJ., concur in Per Curiam opinion; Goldman, J., dissents and votes to affirm the judgment as to both defendants in an opinion in which Del Vecchio, J., concurs.
Judgment reversed on the law and facts, complaint dismissed without costs as to defendant Martenson, and a new trial granted as to defendant Sam, with costs to this appellant to abide the event.