There was no showing that the defendant breached such duty. On the other hand, if the Arbaugh decision (removing classifications of persons entering on property of another -- of trespasser, licensee or invitee) determined the duty of the railroad as requiring it, in its operation, to exercise ordinary and reasonable care under all of the circumstances, there was some evidence permitting the case to go to the jury. (See Footnote 6.) Absent a showing of breach of duty to Tyrone, the rescue doctrine was not available to Jenell.
At first blush, it might seem that public policy would dictate that a person reasonably endeavoring to save life or limb of another should not be dependent for the benefit of the rescue doctrine upon a showing that the negligence of (here) the railroad caused the predicament of the party sought to be rescued. On the other hand, would it not be unreasonable to require a party who did not in any particular make necessary the rescue to immunize the rescuer from incidental risks attending the voluntary act of the latter in attempting the rescue?
The rescue doctrine creates no new right of action for the rescuer. Within prescribed bounds the doctrine merely prevents the attempt to rescue from becoming a voluntary assumption of incidental risks (thus barring recovery).
In order for a rescuer to recover he must prove breach of duty owed him. If this be established his right of recovery cannot be defeated by the claim of voluntary assumption of incidental risks, provided the attempt to rescue be within generally recognized limits (i.e., if under the circumstances the effort was not unreasonable). With no showing of breach of duty to Tyrone (under either Firfer or Arbaugh), the rescue doctrine is not applicable.
The court concludes that the minor sought to be rescued was a trespasser. There was no breach by the defendant railroad of duty owed to a trespasser (Firfer case). The court further concludes that there was insufficient evidence, even assuming defendant's duty was to exercise ordinary and reasonable care, to show breach of duty owed Jenell. The court, on further consideration, is therefore constrained to hold that there was not sufficient probative evidence to permit the plaintiffs' case to go to the jury even on the theory that defendant's duty was to exercise ordinary and reasonable care under all of the circumstances (Arbaugh case). It follows that the defendant's motion for judgment n.o.v. should be granted for both reasons, and that plaintiffs' motion for new trial (as to damages only) becomes moot.
The standard of care required in this jurisdiction under applicable law established by the United States Court of Appeals for the District of Columbia in the Firfer case when it was functioning as the highest court for the District of Columbia (in comparable State status) is controlling. Decision by the United States Court of Appeals for the District of Columbia in the Arbaugh case, coming after the Reorganization Act establishing the District of Columbia Court of Appeals as the highest District of Columbia court, is not controlling, under pronouncement of the United States Supreme Court in the Erie case, supra. The probative evidence is not sufficient under either theory (i.e., Firfer or Arbaugh) to support plaintiffs' claim.
Accordingly, it is this 13th day of December, 1972,
Ordered that the motion for judgment n.o.v. be, and it is hereby granted. It is further
Ordered (the motion for new trial as to damages only being now moot) that in the event the granting of judgment n.o.v. be reversed, the motion for new trial as to damages only should be denied.