Leslie v. Robinson 267 A.D. 965

Action to recover damages for the death of plaintiff’s intestate by drowning. The deceased was a passenger in a launch in the lake in Prospect Park, Brooklyn. The launch had nearly completed a trip around the lake and was floating to its dock when, by some unexplained cause, the deceased entered the water at a point where it was six feet deep, and about fifteen feet from the shore. The defendants are charged with omission to save life with means adequate to that end. Judgment reversed on the law, with costs, and the complaint dismissed on the law, with costs. While it appears that there is no legal duty to attempt a rescue, it may be accepted, for the purposes of this decision, that such a duty is owed to an invitee who is in peril. The undisputed material facts in this case at most establish that a mere error of judgment in an emergency was committed rather than a negligent fault. In such a situation the defendants are not required to exercise the best choice of judgment that later considerations might indicate and failure to do so may not be made the basis of liability for the result. Furthermore, the finding that the defendants were negligent is contrary to the evidence and to the law as charged by the Trial Justice. Hagarty, Acting P. J., Adel, Lewis and Aldrich, JJ., concur; Carswell, J., concurs in result. [See post, p. 967.]