43 NY 502 (1871)
The rapid expansion and operation of railroads in the nineteenth century had an enormous impact on the nation’s economic development, but they also caused many injuries to workers, passengers and members of the public. The sheer volume and severity of these accidents profoundly affected the development of tort law, which gradually shifted away from a legal framework protective of railroads and economic development to one more concerned with the unprecedented human costs of the powerful new industry. An outstanding example of this shift and of the law’s “regard for human life” is Eckert v. Long Island R.R., which addresses the doctrine of contributory negligence, and the longstanding legal maxim of volenti non fit injuria (no injury is done to a person acting of his own free will), in the context of a selfless act of heroism.
Henry Eckert was standing approximately 50 feet from the railroad tracks in East New York when he saw a small child in the path of an oncoming train. Eckert rushed onto the tracks and succeeded in throwing the child from the train’s path, but he was struck and killed in the process.
At trial in the City Court of Brooklyn the court refused to instruct the jury that the plaintiff could not recover if it found that Eckert had voluntarily placed himself in peril. The jury returned a verdict in the plaintiff’s favor after finding the railroad negligent for operating the train at an excessive speed. The General Term of the Supreme Court for the Second Department affirmed the judgment. The defendant appealed, arguing that its motion to dismiss the action should have been granted on the law since the deceased’s own negligence contributed to his death and therefore barred his recovery.
Writing for a majority of the court, Judge Martin Grover acknowledged that if the deceased had voluntarily tried to cross the tracks in front of the oncoming train to save his property, for example, “his conduct would have been grossly negligent, and no recovery could have been had for such injury.” But the evidence showed that defendant was reacting to the presence of a small child on the track, “who, if not rescued, must have been inevitably crushed by the rapidly approaching train.” The deceased’s actions did not constitute negligence because he “owed a duty of important obligation to this child to rescue it from its extreme peril, if he could do so without incurring great danger to himself.”
Negligence implies some act of commission or omission wrongful in itself. Under the circumstances in which the deceased was placed, it was not wrongful in him to make every effort in his power to rescue the child, compatible with a reasonable regard for his own safety. It was his duty to exercise his judgment as to whether he could probably save the child without serious injury to himself. If, from the appearances, he believed that he could, it was not negligence to make an attempt so to do, although believing that possibly he might fail and receive an injury himself. He had no time for deliberation. He must act instantly, if at all, as a moment’s delay would have been fatal to the child. 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.
Judges William F. Allen and Charles J. Folger dissented. In their view, rescuing the child from “apparent imminent danger was a praiseworthy act,” but not praiseworthy enough to merit an exception to longstanding common law principles.
It is a well established rule, that 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 a position of danger, does so at his own peril, and must take the consequences of his act. This rule has been applied to actions for torts as well as to actions upon contract, under almost every variety of circumstance.
Unlike the majority, which found that the deceased was acting pursuant to a “duty of important obligation” to rescue a child from “extreme peril,” the dissenters could not discern “any duty imposed by law, or growing out of his relation to the child, or the result of any necessity. There is nothing to relieve it from the character of a voluntary act, the performance of a self-imposed duty, with full knowledge and apprehension of the risk incurred.”