Feldman v. New York City Transit Authority

Decision Date15 December 1964
Citation22 A.D.2d 872,254 N.Y.S.2d 398
PartiesRose 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.
CourtNew 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.

PER CURIAM.

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. 'He voluntarily placed his head in a position of danger and kept it there, without paying attention to the * * * [the direction] from which he knew a train would come towards his head. * * * Every second he remained, the likelihood of a train arriving increased. * * * He was heedless of ordinary precautions in a place of known danger.' (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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4 cases
  • Fehlhaber Corp. v. State
    • United States
    • New York Court of Claims
    • 24 Septiembre 1970
    ... ... The STATE of New York, Defendant ... Claim No. 47387 ... Court of Claims of New ... Pilz, New York City, for claimants ...         Louis J. Lefkowitz, ... Unfortunately, claimants have cited no authority to justify the awarding of any interest on bonds deposited ... In this regard Feldman v. New York City Transit Authority, 44 Misc.2d 35, 252 ... ...
  • Washington Street Urban Renewal Project in Borough of Manhattan, In re
    • United States
    • New York Court of Appeals Court of Appeals
    • 13 Febrero 1974
    ... ... In the Matter of the City of New York, Respondent, Relative ... to Acquiring Title to ... Y.2d 633, 249 N.Y.S.2d 423, 198 N.E.2d 595; but see Feldman v. New York City Tr. Auth., 44 Misc.2d 35, 36, 252 N.Y.S.2d ... ...
  • Feldman v. New York City Transit Authority
    • United States
    • New York Court of Appeals Court of Appeals
    • 27 Mayo 1965
  • Clara & Bernard Restaurant Inc. v. New York State Liquor Authority
    • United States
    • New York Supreme Court — Appellate Division
    • 15 Diciembre 1964
    ... ... Dec. 15, 1964 ...         D. J. Eisenberg, New York City, for petitioner ...         H. Mark, New York City, for respondent ... ...

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