Feldman v. New York City Transit Authority
Decision Date | 15 December 1964 |
Citation | 22 A.D.2d 872,254 N.Y.S.2d 398 |
Parties | Rose FELDMAN, as Administratrix of the last goods, chattels and credits of Harry Feldman, deceased, Plaintiff-Respondent, v. The NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant. |
Court | New York Supreme Court — Appellate Division |
N. S. Anthony, New York City, for plaintiff-respondent.
W. F. McNulty, New York City, for defendant-appellant.
Before RABIN, J. P., and McNALLY, STEVENS, EAGER and STEUER, JJ.
Judgment entered in plaintiff's favor unanimously reversed on the law and the complaint dismissed, with $50 costs to appellant. Decedent, an employee at a subway news stand, was killed when struck by a train while he was leaning over the edge of the platform to observe a fire on the tracks. The court charged the jury on the elements of common law negligence and last clear chance and instructed that liability could be imposed on either ground if the facts so warranted. The jury rendered a general verdict in plaintiff's favor. We hold that the verdict may not be sustained on either ground. We conclude that decedent's behavior rendered him guilty of contributory negligence as a matter of law. (Zobel v. City of New York, 275 App.Div. 782, 87 N.Y.S.2d 264, affirmed 300 N.Y. 490, 88 N.E.2d 722). Nor may the defendant be cast in liability by reason of the application of the doctrine of last clear chance. To do so would require, inter alia, findings that the decedent was in a position of 'helpless danger' and that the defendant's motorman knew of decedent's helplessness. On this record neither of such findings may be made. 'So long as the * * * [the decedent] could have drawn back from the risk of collision * * * he was not in helpless danger. * * *' (Hernandez v. Brooklyn and Queens Transit Corp., 284 N.Y. 535, 538-539, 32 N.E.2d 542, 544). Neither is there any basis for a finding that the motorman was aware of decedent or his state of peril. Nor was there any proof sufficient to permit an imputation of knowledge to the motorman by reason of conduct so reckless as to show an indifference to knowledge. (See Frey v. Long Island R.R. Co., 272...
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