Citation. 43 N.Y. 502, 1871 N.Y.
Brief Fact Summary. Plaintiff was hit and killed by Long Island R.R.’s (Defendant’s) train in an attempt to rescue a child who was on the train tracks. Defendant moved for a nonsuit upon the ground that Plaintiff’s negligence contributed to the injury.
Synopsis of Rule of Law. Negligence implies some act of commission or omission wrongful in itself. Plaintiff will not be held to be negligent in rescuing a child.
Facts. Plaintiff was standing about fifty feet from Defendant’s railroad track in the afternoon of the day. A child, three or four years old was sitting or standing upon Defendant’s railroad track as the train was approaching. The train was likely to run the child over if Plaintiff, seeing the danger, had not rescued child. Plaintiff threw the child clear of the track, but continuing across the track himself, was struck by the train and died. Defendant moved for a nonsuit upon the ground that it appeared that Plaintiff’s negligence contributed to the injury. The lower court denied Defendants request and the jury found a verdict for Plaintiff. Defendant appealed
Issue. Is Plaintiff negligent and thus barred from recovery when he puts himself at peril to save the life of a child?