Bittner v. Crosstown St. Railway Co.

WHITE, J. I am of the opinion that the judgment and order appealed from should be affirmed. The controversy as to whether they should or not depends substantially upon the correctness of the ruling by the trial court upon the defendant’s request Ho. á, as it appears in the appeal book. As I construe the language of the request, the refusal was right, and the exception is not well taken. As the evidence then stood, the jury would have been justified in finding either way upon the question as to whether or not the emergency which the motorman was called upon to meet after he had run over the body of the deceased in the first instance was attributable solely to his own negligence. If it was, then his efforts to extricate the boy from peril, however praiseworthy, would not relieve the defendant from the consequences of an error in judgment in making those efforts. Error in judgment on the part of one who negligently injures another cannot be invoked as a defense in behalf of him who causes the injury. With equal propriety might a cause of action in favor of the one injured be predicated upon his error in judgment in erroneously deciding that he could do with safety the act which resulted in his injury. Judgment and order appealed from affirmed.