Kenneth S. Abraham
Ted White

Recovering Wagner v. International Railway Company

Touro Law Review


Benjamin Cardozo's 1921 opinion for the Court of Appeals of New York in Wagner v. International Railway Co. has been called the "seminal case imposing liability on a tortfeasor for harm suffered by a person who came to the rescue of another." The case is indeed seminal, but it did not become so on its own. Rather, in Wagner, Cardozo took a question on which there already was substantial precedent, and re-answered the question in a new, inimitable, and memorable way. As Cardozo put it in a now-canonical phrase, "Danger invites rescue." Then, precisely by virtue of the way Cardozo did this re-answering, Wagner became the leading decision on the subject.
In this Article we analyze Cardozo's accomplishment, and we show how his opinion in Wagner foreshadowed what he later accomplished in his even more celebrated opinion in Palsgraf v. Long Island R.R. Co. Part I extensively reviews the evidence and jury instructions at the trial in Wagner. Part II outlines the relevant New York case law at the time of the appeal. Part III identifies the ways in which counsel employed and characterized this case law and its application to the Wagner case on appeal. Finally, Part IV analyzes Cardozo's opinion in Wagner, explaining how he approached the rescue issue, how he applied this approach to the facts, and why we believe that Wagner was a precursor to Palsgraf.


Kenneth S. Abraham & G. Edward White, Recovering Wagner v. International Railway Company, 34 Touro Law Review 21-62 (2018).

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