Feldman v. New York City Transit Authority
| Decision Date | 27 May 1965 |
| Citation | 261 N.Y.S.2d 286,16 N.Y.2d 654 |
| Parties | , 209 N.E.2d 280 Rose FELDMAN, as Administratrix of the Estate of Harry Feldman, Deceased, Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, First Department, 22 A.D.2d 872, 254 N.Y.S.2d 398.
Action for wrongful death of plaintiff's decedent who was killed when struck by defendant's subway train while he was leaning over the edge of a platform to observe a fire on the tracks.
The Supreme Court, New York County, at Special and Trial Term, Matthew M. Levy, J., entered a judgment against defendant.
The Appellate Division on appeal held that decedent was guilty of contributory negligence in placing his head in a position of danger and keeping it there without paying attention to direction from which he knew a train would come toward his head, and that in view of fact that there was no basis for a finding that decedent was in a position of helpless danger or that defendant's motorman knew of decedent's helplessness, defendant could not be cast in liability by application of the doctrine of last clear chance.
From the order of the Appellate Division which reversed and dismissed the complaint, the plaintiff appealed.
Nelson S. Anthony and David Marcus, New York City, for appellant.
William F. McNulty, New York Daniel T. Scannell, Brooklyn, and George J. Conway, New York City, for respondent.
Order affirmed, without costs.
Decedent worked in a newstand on the northbound Independent Subway station platform at Eighth Avenue and 42nd Street. It was reported to him that there was a fire on the northbound express track about 12 feet from the newsstand. There was smoke coming from the area which a platform conductor employed by defendant saw. Decedent stooped down in a bending position, moved up closer to the platform and bent over with his head out over the track.
In this position, with the platform conductor standing beside him, decedent was struck by a train and killed. There was no whistle or other warning from the train and the general noise in the station was such that the platform conductor did not hear the approach of the train: 'I was looking at the smoke.' Decedent was in this position, one witness said, 'half a minute, less than that, let's say'. Another witness estimated decedent was in this position 'a short time', a 'matter of seconds'. The motorman testified he did not see decedent in a position of peril as he conducted the train into the station. His first knowledge of an occurrence was when he 'heard a thump'.
But if the train came into the station at 15 to 20 miles an hour as the motorman's report shows, he ought to have seen decedent leaning over the track 270 feet north of the south end of the platform in adequate time to blow the whistle or to apply the emergency brakes which, at 15 to 20 miles an hour, would have stopped the train at 'less than 120 feet'. If he saw decedent in this position of imminent peril he was not, as a matter of law, justified in assuming decedent would get out of it.
Plaintiff, therefore, established defendant's negligence prima facie. Certainly, if people on the platform saw decedent's dangerous position in adequate time before he was struck, the motorman could be found to have seen it or to have been negligent in not seeing it, and to have been required to blow a whistle or apply the emergency brakes.
This is very different from a failure to foresee that a man near a track would walk in front of a train (Kawacz v. Delaware, L. & W. R. R. Co., 259 N.Y. 166, 181 N.E. 87). There is here, rather, a failure to observe an existing peril which could have been seen and...
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