Curley v. Consolidated Rail Corp.

• Decision Date: 24 December 1991
• Citation: 178 A.D.2d 318,578 N.Y.S.2d 536
• Parties: Thomas W. CURLEY, Plaintiff-Respondent, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellant and Third-Party Plaintiff-Appellant. Excelsior Truck Leasing Company, Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 536

578 N.Y.S.2d 536

178 A.D.2d 318

Thomas W. CURLEY, Plaintiff-Respondent, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellant and Third-Party Plaintiff-Appellant. Excelsior Truck Leasing Company, Third-Party Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Dec. 24, 1991.

Before MURPHY, P.J., and CARRO, ROSENBERGER, WALLACH and ROSS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Hugh Gilbert, J., and a jury), entered July 25, 1990, in favor of plaintiff and against defendant in the sum of $989,058.17, and dismissed the third-party complaint, is modified, on the law, to the extent of vacating the judgment and verdict in favor of the plaintiff against defendant, and dismissing the complaint, and otherwise affirmed, without costs.

Since 1978, Mr. Thomas W. Curley (Officer Curley) had been employed by Consolidated Rail Corporation (Conrail) as a police officer, and in March 1984, he was assigned to Conrail's police station located at West Haverstraw, New York, where he worked the 4:00 p.m. to midnight tour.

On March 6, 1984, at approximately 9:50 p.m., while on routine motor patrol, in Car 360, Officer Curley was driving, at a speed of between 40 and 45 miles per hour, south on Route 9W from Bear Mountain. Suddenly, as he was proceeding down a slight incline, the vehicle abruptly stopped, skidded on the pavement, throwing him forward and across the driver's seat. As a result of the incident, Officer Curley alleges he suffered injuries to his back.

By summons and complaint, in August 1984, Officer Curley (plaintiff) commenced, pursuant to the Federal Employers' Liability Act (45 U.S.C.A. § 51 et seq.), an action against Conrail (defendant) to recover damages for his injuries, in the Supreme Court, New York County. Thereafter, since defendant leased Car 360, which was a 1981 Ford LTD, from Excelsior Truck Leasing Company (Excelsior), it commenced a third-party action against Excelsior and the Ford Motor Company (Ford). Prior to trial, defendant discontinued the third-party action against Ford, with prejudice.

A jury trial resulted in a verdict in favor of the plaintiff against the defendant in the sum of $989,058.17, and in favor of the third-party defendant Excelsior on the third-party claim. Defendant appeals.

Since the plaintiff brought the instant action under the Federal Employers' Liability Act (FELA), "the proper standard of review is that which has been developed in FELA cases and not those applied in the usual common-law negligence actions ..." (Richards v. So. Buffalo Ry, 54 A.D.2d 310, 311, 388 N.Y.S.2d 479 (1976)).

Repeatedly, the United States Supreme Court has held that under FELA "the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought ..." (Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957), rehearing denied 353 U.S. 943, 77 S.Ct. 808, 1 L.Ed.2d 764 (1957), and Atchison T. & S.F.R.Co. v. Buell, 480 U.S. 557, 561-562, 107 S.Ct. 1410, 1413-1414, 94 L.Ed.2d 563 (1987)).

While "the standard of causation in an FELA action is a 'low and liberal' one ..." (Smith v. National R.R. Passenger Corp., 856 F.2d 467, 469 (2nd Cir.1988)), the United States Supreme Court, in A.T. & S.F. Ry. Co. v. Toops, 281 U.S. 351, 354-355, 50 S.Ct. 281, 282-283, 74 L.Ed. 896 (1930), has held unequivocally that a jury in a FELA case is not to engage in speculation in order to determine whether the negligence of the employer caused the injury. Specifically, that Court stated "[b]ut proof of negligence alone does not entitle the plaintiff to recover under the Federal Employers' Liability Act. The negligence complained of must be the cause of the injury. The jury may not be permitted to speculate as to its cause and the case must be withdrawn from its consideration unless there is evidence from which the inference may reasonably be drawn that the injury suffered was caused by the negligent act of the employer ... [citations omitted] ..." (id.) [material in brackets added]. Further, the Court of Appeals has stated "if there is any principle of law that is too well settled to require extensive citation of authority, it is that a jury finding based on speculation is a nullity (Lahr v. Tirrill, 274 N.Y. 112, 117 ...)" (Feblot v. New York Times Co., 32 N.Y.2d 486, 494, 346 N.Y.S.2d 256, 299 N.E.2d 672 (1973)).

Our examination of the trial transcript indicates that plaintiff's evidence of causation came from his own testimony, that of Conrail Police Officer James Libruk (Officer Libruk), and the deposition testimony of Conrail Police Officer Douglas Mendik (Officer Mendik). While plaintiff worked the 4:00 p.m. to midnight tour, Officer Libruk worked the midnight to 8:00 a.m. tour, and Officer Mendik worked the 8:00 a.m. to 4:00 p.m. tour. During their tours, each one of the officers drove Car 360.

Officers Libruk and Mendik, as well as the plaintiff, testified that Car 360 was frequently being repaired, and, from time to time, all of them had experienced mechanical difficulties in operating that vehicle, and had complained about its performance. Further, plaintiff testified that, based upon information he received from an unnamed union representative, a police vehicle like Car 360 is kept in service between eighteen months and two years. Officer Libruk testified that, by late 1982, Car 360 had been driven approximately 140,000 miles, and Officer Mendik stated that he believed that the odometer on Car 360 had been rolled over twice.

The plaintiff was unable to give any specific reason, other than speculation, for the cause of the alleged accident, since he testified, on direct examination, that, before Car 360 abruptly stopped, he "didn't hear anything or feel anything. I was very relaxed ... [and] I believe the wheels locked on me because I did skid. The car did skid ... I felt it and I heard it ..." (see, Trial Transcript (TT), at 140-141). Further, plaintiff admitted, during cross-examination, that, after the accident and before the tow truck arrived, he believes he moved Car 360 forward and backward without any apparent difficulty (see, TT, at 361).

Applying the legal authority, supra, to the facts of the instant case, we find that the plaintiff's only evidence, unsupported by any expert testimony, indicating that defendant's negligence caused his accident, consists of allegations that the subject vehicle had been frequently repaired, complained about, was more than eighteen months old, and had been driven thousands of miles. We further find that evidence insufficient as a matter of law, without speculation, to permit the jury to reasonably draw the inference "that the injury suffered was caused by the negligent act of the employer ..." (A.T. & S.F. Ry. Co. v. Toops, supra at 355, 50 S.Ct. 281, 74 L.Ed. 896). In reaching our conclusion, we have given the plaintiff "the benefit of every reasonable inference which can reasonably be drawn from that evidence ..." (Hylick v. Halweil, 112 A.D.2d 400, 492 N.Y.S.2d 57 (1985)).

In view of our determination that the plaintiff did not make out a prima facie case, as a matter of law, we do not reach the other contentions of error made by defendant.

At the close of plaintiff's case, the defendant moved to dismiss the complaint "on the ground the plaintiff ... failed to make out a prima facie case on the issue of liability both in terms of negligence and in terms of proximate cause ...", and the Trial Court, after hearing argument, denied the motion, "without prejudice ... to any post judgment or verdict motions which may be appropriate" (see, TT, at 733-741). Thereafter, at the close of trial, defendant moved to set aside the verdict and dismiss the complaint on the ground that plaintiff had "[f]ailed as a matter of law to prove proximate cause and failed as a matter of law to prove that the defendant ... was negligent ...", and again, the Trial Court, after hearing argument, denied "the motion with exception ..." (see, TT,...