Huan Long (201005051)
Case Brief 5: Eckert v. Long Island R. Co.
On the 26
of November, 1867, a three- or four-year old child was sitting or
standing upon a track of the defendants road as the train was approaching, was liable
to be run over, if not removed. Henry Eckert, the plaintiff’s intestate, seeing the
danger of the child, ran to it and saved him. However, when he tried to across the
track himself, he was struck, thrown down, and received injuries and died the same
Rules of Law:
ALLEN and FOLGER, JJ., contra; Gould v. Oliver, 2 Scotts. N. R., 257; Ilott v.
Wilkes, 3 B. & Ald., 311; Slagan v. Slingerland, 2 Caines, 219; Per MARVIN, J., in
Corwin v. N. Y. and E. R. R. Co., 3 Ker., 42; per COWEN, J., in Hatfield v. Roper, 21
W. R., 620; Per BEARDSLEY, J., Tonawanda R. R. Co., v. Munger, 5 Denio, 255;
Evansville R. R. Co. v. Hyatt (17 Ind., 102).
1. Is the action of plaintiff’s intestate negligent?
2. Should the deceased be liable for his injury?
1. No. According to the
ALLEN and FOLGER, JJ., contra,
a person voluntarily
placing himself, for the protection of property merely, in a position of danger, is
negligent; however, when the exposure is for the purpose of saving life, it is not
wrongful, and therefore not negligent unless such as to be regarded either rash or
2. Yes. Under the maxim volenti non fit injuria, no one can maintain an action for a
wrong, when he consents or contributes to the act which occasions his loss.
1. The deceased’s action was aimed to save the child’s life. 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