43 N.Y. 502 (1871)
The testator was engaged in a conversation about 50 feet from the railroad track when he observed a three or four-year-old child in the path of an oncoming train. He ran to the track, threw the child from the track, but was struck by the train and killed. A jury found for the executrix on her wrongful death action against the railroad, and the lower court affirmed that judgment.
- On appeal, the court held that it would not impute contributory negligence against the testator where he sought to save the life of a child.
- The court reasoned that when the testator's exposure to serious injury was for the purpose of saving life, it was not wrongful and was, therefore, not negligent unless it was regarded either rash or reckless.
- The court noted that decedent 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.
- In affirming, the court concluded that the testator's instant decision to attempt to save the child's life did not constitute negligence.
The court affirmed the lower court's affirmation of the trial court's judgment for the executrix because decedent's quick decision to attempt to save the small child's life did not constitute contributory negligence.
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