Plaintiff and his cousin were riding a crowded train when the cousin was thrown out of the open doors of the train car to his death. Plaintiff, while looking for his cousin’s body (claiming to be doing so at the instruction of the conductor), lost his footing and fell off a high trestle to the ground below.
Continuity for the sake of proximate cause in the case of emergency rescue is not broken by the exercise of volition on the part of the rescuer. A negligent actor who causes injury can bear liability for the actions of those who undertake to rescue the injured party.
Plaintiff and his cousin Herbert boarded a train car at a station near the bottom of a trestle. Many other passengers were entering at the same time and blocked admission to the aisle of the train car. The platform had several doors, but the conductor failed to close them. The train took a curve without slowing down and threw Herbert out of the car where the trestle becomes a bridge. The cry of “man overboard” was raised, and the car went across the bridge, stopping near the foot of the incline. Darkness had fallen, but plaintiff exited the train and walked the trestle, looking for his cousin’s body. Plaintiff claims that the conductor instructed him to do so and even followed him with a lantern (the conductor denies both of these statements). Other passengers, assisting in the search, went under the trestle, where they found Herbert’s body. Above them, plaintiff found Herbert’s hat on a beam, lost his footing, and fell to the ground below.
Was the jury instruction regarding the conductor’s conduct appropriate?
No. The trial court erred in giving the limiting jury instruction regarding the conductor’s conduct. It is up to the jury to decide whether Herbert’s fall was due to the defendant’s negligence and also whether the plaintiff’s rescue response was appropriate.
The negligent actor not only has a duty to the injured person, but also to the injured person’s rescuer because the risk of rescue is born of the occasion of injury. The defendant contends that the risk of rescue is born by the rescuer once that rescue action ceases to be instinctive and immediate, but the court finds no reason to limit liability only to such spontaneous rescue attempts. It would be impossible to determine whether the rescuer had time to stop and think about the peril of rescue in such a way that the defendant claims would shift liability. The court further finds that the plaintiff was not contributorily negligent due to the emergency conditions.