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.
Held. No. Judgment for Plaintiff affirmed.
* If Plaintiff, for his own purposes, attempted to cross the track, then his conduct would have been grossly negligent and no recovery would have been allowed. But in this case, the evidence showed there was a small child upon the track, who, if not rescued, would have been crushed by the approaching train. Negligence implies some act of commission or omission wrongful in itself. In this case, Plaintiff’s act cannot be viewed as wrongful. The law has so high a regard for human life that it will not impute negligence in an effort to preserve it.
Dissent. Plaintiff went upon the track in front of an approaching train voluntarily. His action was the result of his own choice. No one can maintain an action for a wrong when he consents or contributes to the act, which occasions his loss. One who with liberty of choice, and knowledge of the hazard of injury, places himself in the position of danger, does so at his own peril, and must take the consequences of his act.
Discussion. A high value is placed on the preservation of human life and the court will not negate the Plaintiff’s claim of negligence.