Amoruso v. New York City Transit Authority

• Decision Date: 06 December 1960
• Parties: Leonard AMORUSO, Plaintiff-Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 855

207 N.Y.S.2d 855

12 A.D.2d 11

Leonard AMORUSO, Plaintiff-Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

Dec. 6, 1960.

Frank Serri, Brooklyn, of counsel (Joseph A. DeMarco, Brooklyn, on the brief), for plaintiff-appellant .

Edward W. Summers, Brooklyn, of counsel (Helen R. Cassidy, Brooklyn, on the brief; Daniel T. Scannell, Brooklyn, attorney), for defendant-respondent.

Before BOTEIN, P. J., and BREITEL, RABIN, McNALLY and STEVENS, JJ .

PER CURIAM.

In this case plaintiff sues for injuries sustained by him as a result of an assault upon him in a subway station located at 14th Street and 8th Avenue. The Trial Court dismissed the complaint at the conclusion of the case without submitting it to the jury.

There is no question but that the defendant, a railroad carrier, is under a duty to take reasonable precautions for the protection and the safety of its passengers. The nature and extent of such duty is dependent upon the circumstances of each particular situation and the danger reasonably to be anticipated. That, and whether such duty has been fully discharged, is determined either as a question of fact (Langer v. City of New York, 9 Misc.2d 1002, 171 N.Y.S.2d 390, affirmed 8 A.D.2d 709, 185 N.Y.S.2d 751) or as a matter of law (Moriarty v. New York City Transit Authority, 11 A.D.2d 654, 201 N.Y.S.2d 600) dependent upon the evidence presented. By dismissing the complaint without a submission to the jury the Court made such determination as a matter of law. We conclude that in the circumstances such dismissal was error.

Some of the facts were clearly established beyond dispute, such as the location of the subway station and its physical layout, incidents of prior assaults, etc. However, there were others that were in sharp dispute or at least remained undetermined. These were directed chiefly towards the steps the carrier took in discharge of the obligation owing to its passengers. One of such unresolved questions was whether a police officer was present at the subway station at the time of the assault, or whether there was an officer present at the adjoining BMT station at the time in question. If it were found that there were such officers present, there is the further question as to whether they were negligent in the performance of their duties. Without the resolution of such questions of fact the Court could not properly reach the question of law. On a motion to dismiss we are obliged to give the plaintiff the benefit of every fair inference that could be drawn from the evidence. Doing so, we would have to assume that there was no officer present on either platform at the time of the incident complained of. A dismissal, therefore, would require that we hold as a matter of law that the defendant was under no obligation to furnish police protection on that station or on the adjoining station at the time in question. Under the circumstances here present we may not so hold. Nor do the Langer and Moriarty cases, supra, require a different conclusion. In the Langer case the Court, sitting without a jury, found as a matter of fact that under the circumstances there present the carrier had...