Wagner v International Railway Company

“Danger invites rescue. The cry of distress is the summons to relief.”¹

In the summer of 1916, Arthur Wagner boarded a crowded railcar with his cousin Herbert. The two young men were travelling home after an enjoyable Sunday excursion to Grand Island, just south of Niagara Falls. The cousins had spent the day watching a ball game on the island and enjoying a few drinks with friends. Just moments after boarding the railcar that would transport them home, however, one of the boys would be violently thrown from the moving train, while the other boy would soon suffer a similarly terrifying tumble.

The Buffalo and Niagara Falls Railway

The railcar boarded by Arthur and Herbert was operated by the International Railway Company. The Buffalo and Niagara Falls Railway ran from Buffalo, New York to Niagara Falls, Ontario. When the railway began operating in the mid-1830s, the railcars were horse-drawn.² By the 1840s, the horses had been replaced with steam locomotives.³ During the early to mid-1800s, the Buffalo–Niagara Falls route played a significant role in the Underground Railroad and the emancipation of enslaved African Americans, many of whom were guided via train across the Canadian border.⁴ Unfortunately, the track’s iron straps were extremely dangerous. The summer heat often distorted them out of shape, causing the straps to pierce through the bottom of the railcars travelling on this route.⁵ Passengers also faced another danger: the frightening possibility that the locomotive’s boiler would explode.⁶ By the time of Arthur and Herbert’s day trip in 1916, bright yellow electric railcars were used on the Buffalo–Niagara Falls route.

Two Young Men Board a Crowded Railcar; Only One Voluntarily Alights

The Buffalo-Niagara Falls route was often busy with tourists, and the Sunday afternoon in question was no exception. The carriage boarded by Arthur and Herbert was so crowded that the two young men were required to stand on the outside platform. Whilst the platform had doors, the conductor allowed them to remain open. Shortly after Arthur and Herbert boarded, the railcar proceeded up an incline before making a sharp left turn as the incline segued into a bridge. The bridge had a railing, however, the incline leading to the bridge did not. At the point of the sharp left turn, the carriages overhung the edge of the bridge at a considerable height. There was a violent lurch as the railcar proceeded around the bend and another passenger standing on the platform bumped into Herbert. Herbert lost his balance and was thrown over the edge of the bridge. He fell to the ground below, a distance of at least 4.5 metres. Arthur heard a scream and turned just in time to see the shadow of a man falling from the railcar’s platform. After looking around for his cousin, Arthur realised with horror that it was Herbert’s body that he had just seen being thrown from the moving railcar. Arthur and a fellow passenger began to scream: “man overboard!” The railcar came to a sudden stop after proceeding across the bridge and down the decline.

A number of passengers alighted and started searching for Herbert, focussing their attention on the ground below the bridge. Arthur, who was greatly concerned for his cousin’s safety, decided to instead walk back to the bridge to search for Herbert. He walked a distance of approximately 135 metres before he stumbled upon Herbert’s hat lying on a beam. Fearing that Herbert might be trapped within the bridge’s trestles, Arthur attempted to climb down the trestles to search for his cousin. Meanwhile, the passengers searching the ground below discovered Herbert lying unconscious below the bridge. All of a sudden, Arthur lost his footing and suffered a terrible fall from the trestles, landing hard on the ground near the other passengers.⁷

Remarkably, Herbert was not seriously injured. His shoulder was dislocated when he was thrown from the railcar, but by 1918, he was fit enough to be drafted into the United States Army.⁸ Arthur was not as lucky. His fall from the trestles left him partially paralysed in his lower limbs. He remained in hospital for over nine months and was unable to continue his work as an upholsterer.⁹ Arthur sued the International Railway Company—which operated the railcar—for negligence.

At trial, Arthur testified that he was asked to climb the trestle by the conductor, who followed him with a lantern as they searched for Herbert on the bridge. The conductor denied Arthur’s claims. The trial judge directed the jury that even if the International Railway Company had been negligent in operating the railcar around the sharp curve, or in overcrowding the railcar without providing all passengers with a seat, Arthur could not rely on any such negligence as the basis of his claim. While Herbert may have been able to sue on the basis of these acts, Arthur could not because his injury did not flow from the negligent operation of the railcar. Arthur was instead required to show that the defendant had been negligent after the railcar had proceeded over the bridge and stopped. If Arthur had been invited by the conductor to search for Herbert on the bridge, and if the conductor had followed with a light, then Arthur would have a basis for his negligence action. Without this, however, Arthur’s search on the bridge, in conditions of darkness, would have been of his own volition, and the defendant could not be liable for Arthur’s fall from the trestle. So instructed, the jury, who believed the conductor’s version of events, returned a verdict for the defendant railway company. On appeal, the Appellate Division of the Supreme Court of New York upheld the jury’s verdict. Arthur appealed to the Court of Appeals of New York.

The Risk of Rescue is Born of the Occasion

In the 1870s, the New York courts became the first in the common law world to grant compensation to persons injured while rescuing others from perilous situations.¹⁰ In an article examining the theoretical underpinnings of liability in negligence for injuries caused to altruistic rescuers, Mendelson identifies an ‘internal contradiction’ in this area of the law: while the tort of negligence ‘imposes upon everyone a duty to act with care, and punishes–through levying damages–careless or risky conduct when a foreseeable injury occurs, in cases of injured rescuers the law also awards damages for voluntary conduct fraught with danger.’¹¹ Cardozo J, who delivered the court’s judgment in Arthur Wagner’s case, no doubt grappled with this issue. In reversing the decision of the lower courts, Cardozo J held that if the defendant railway company had been negligent toward Herbert, it was also negligent toward his rescuer, Arthur. In doing so, Cardozo J went further than any previous case law.¹² Liability had previously been imposed in cases involving persons who risked harm to themselves in leaping to the rescue of someone who was about to suffer imminent harm due to the defendant’s negligence.¹³ However, Arthur’s situation was different because the defendant’s act which had endangered Herbert was completed prior to Arthur’s rescue attempt.

The basis for Cardozo J’s judgment was that a wrong which endangered the life of the initial victim was also a wrong to their rescuer:

“Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises them as normal. It places their effect within the range of the natural and the probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer … The risk of rescue, if only it be not wanton, is born of the occasion.”¹⁴

Cardozo J rejected the defendant’s argument that the chain of causation between the railway company’s negligence and Arthur’s injury had been severed because Arthur’s rescue was not ‘instinctive’. Because Arthur’s rescue attempt was not spontaneous and immediate, it was, according to the defendant, at Arthur’s own peril. The defendant pointed to the fact that Arthur had walked over 100-metres in search of Herbert’s body and had voluntarily chosen to proceed with his rescue attempt after having time to consider and weigh up the risks of doing so. Cardozo J was forceful in his rejection of this argument:

“We find no warrant for thus shortening the chain of jural causes. We may assume that peril and rescue must be in substance one transaction. … Continuity in such circumstances is not broken by the exercise of volition … The law does not discriminate between the rescuer oblivious of peril and the one who counts the cost. It is enough that the act, whether impulsive or deliberate, is the child of the occasion.”¹⁵

Cardozo J was also quick to reject the defendant’s argument that Arthur’s rescue attempt had been wanton or futile. According to the defendant, Arthur should have joined the other passengers in searching below the bridge for Herbert’s body. By returning to the bridge when it should have been clear that Herbert would have fallen to the ground below, the defendant argued that Arthur’s rescue attempt ‘was not responsive to the call of the emergency’, but rather, ‘was a wanton exposure to a danger’. According to Cardozo J, however, Arthur’s choice was perfectly reasonable, given the emergency situation he found himself in:

“Certainly he believed that good would come of his search upon the bridge. He was not going there to view the landscape … He could not know the precise point at which his cousin had fallen from the car … Indeed, his judgment was confirmed by the finding of the hat. There was little time for delay, if the facts were as he states them. Another car was due, and the body, if not removed, might be ground beneath the wheels. The plaintiff had to choose at once, in agitation and with imperfect knowledge.”¹⁶

Cardozo J’s judgment in favour of Arthur Wagner is said to have foreshadowed his judgment in the famous negligence case of Palsgraf v Long Island Railroad Co,¹⁷ which came before the New York Court of Appeals seven years later.¹⁸ You can view our post on Palsgraf here. Briefly, the case involved a woman, waiting at a railway station, who was injured by an explosion caused by a passenger who­ dropped a package of fireworks. He had been attempting, with the assistance of railroad employees, to board a train with the package. When considering the case of Mrs Palsgraf, Cardozo J, as he had done in Arthur Wagner’s case, focused on whether the defendant’s wrong to the initial victim could also be classed as a wrong to the plaintiff. Whilst in Arthur Wagner’s case, Cardozo J was prepared to find that rescuers fell within the class of persons who suffered a wrong as a result of the defendant’s initial conduct, Mrs Palsgraf was held to be an unforeseeable plaintiff who had failed to demonstrate that the railway’s wrongful conduct also constituted a wrong to herself.

The Seminal Case Imposing Liability for Harm Occasioned to Rescuers

A defendant’s liability for negligently occasioned injury to rescuers is grounded in recognition that rescue is conduct worthy of legal protection.¹⁹ Cardozo J’s judgment in Arthur Wagner’s case is widely viewed as the ‘seminal case imposing liability on a tortfeasor for harm suffered by a person who came to the rescue of another.’²⁰ Whilst Cardozo J did not specifically refer to the defendant’s duty of care, his judgment has been subsequently interpreted as standing for the proposition that defendants who create an emergency situation will owe a duty of care to rescuers.²¹ In Australia, this duty owed to rescuers has been regarded as a secondary duty, derived from the primary duty of care owed by the defendant to the initial victim.²²

Subsequent decisions have also interpreted Cardozo J’s judgment and his reference to a ‘reaction of the mind’ following a victim’s ‘cry of distress’, as meaning that rescuers are not only entitled to damages for any physical injury occasioned by the rescue, but also for pure mental harm. In the United Kingdom, a defendant was first held liable for nervous shock suffered by a rescuer in the 1967 case of Chadwick v British Railways Board.²³ Stay tuned for next month’s post on this fascinating case involving the third-worst railway accident in the United Kingdom’s history.