Kessel v. Long Island R. Co.

• Decision Date: 13 February 1981
• Parties: Richard M. KESSEL, Plaintiff, v. The LONG ISLAND RAIL ROAD COMPANY, Defendant.
• Court: New York District Court

Page 684

436 N.Y.S.2d 684

107 Misc.2d 1067

Richard M. KESSEL, Plaintiff, v. The LONG ISLAND RAIL ROAD COMPANY, Defendant.

District Court, Nassau County, First District, Mineola Part.

Feb. 13, 1981.

Richard M. Kessel, pro se.

Thomas M. Taranto, Jamaica by J. Dennis McGrath, Jamaica, of counsel, for defendant.

DECISION AFTER TRIAL

JOSEPH GOLDSTEIN, Judge.

Plaintiff, in this Breach of Contract action, sues for a refund which he claims is due him as a result of defective service, as well as, price and refund discrimination. Plaintiff urges that the LIRR has failed to perform certain services which Plaintiff alleges are part of Defendant's contractual obligation. While the money sought by Plaintiff is acknowledged by both Plaintiff and Defendant to be de minimus, the principles of this litigation have substantial meaning to both litigants.

The primary question which this Court must answer is what are the terms of the contract of carriage when one purchases a ticket on the Long Island Railroad? Is this question to be examined in view of the equipment utilized by and the technology available to Defendant when it transported President Theodore Roosevelt to Sagamore Hill and internationally famous financiers to Long Island's "Gold Coast" at the turn of the century, or should it be viewed in light of the current equipment offered to the populous "Dashing Dans" who race for the 8:02 each workday morning? The latter interpretation is most compelling, and appears to be relatively free of recent judicial consideration. (However, see Javeline v. LIRR, N.Y.City Civ.Ct., 435 N.Y.S.2d 513, 1980.)

I

The facts are found to be as follows: Plaintiff purchased tickets from the Defendant for travel on the LIRR from different points in Nassau County to both the Manhattan and Brooklyn Terminals of Defendant; that during the period July 14 to July 21, 1980, Plaintiff travelled on 12 such trips and found that the climate control system in the cars in which he travelled were not operating on ten trips so as to provide any comfort or relief from the heat and humidity; that Plaintiff observed various passengers, on more than one occasion during this period, "kick out" windows in the cars in which Plaintiff was a passenger; that Plaintiff observed various passengers refuse to display tickets of carriage to train personnel; that on occasion, train personnel did not enforce the regulations of the Defendant that a passenger either display a ticket, pay a fare, or be asked to leave the train at an appropriate station (usually the next one) or be arrested; that the weather was warm and humid, in the 90o range (climatological reports were admitted in evidence).

Plaintiff now seeks refunds for the price of the tickets for the ten trips on two theories. First, that there was no air conditioning on the trains. Second, a refund based on an alleged discrimination perpetrated against the Plaintiff which he defines as "Price and Refund Discrimination". This Court will address itself only to the first theory since there was no substantial proof offered to support the second theory.

II

Defendant did not offer any affirmative defense in its own behalf. It should be noted, that after Plaintiff rested, Defendant chose not to call any witnesses, but rested after making certain motions. This Court, however, feels compelled to place upon the record its findings regarding the testimony offered by Defendant's employees. In lieu of producing the President of the Defendant corporation, the Defendant produced three employees, pursuant to Subpoena, each of whom were called as Plaintiff's witnesses; the Assistant Chief Mechanical Officer in Charge of Operation, Mr. Edward Case; the person responsible for the maintenance of the Rules and Regulations and the Tariffs of the Defendant, Mr. Mark Smith; and the General Chairman of the United Transportation Union, Mr. Edward Tule, Jr. These men were produced and certain exhibits were admitted into evidence, for the most part, upon the consent of both litigants.

Mr. Edward Case, Assistant Chief Mechanical Officer in Charge of Operations, whose detailed testimony covers approximately 100 pages of transcript, not only confirms many facets of Plaintiff's testimony, but went on to explain some of the problems facing the Defendant in regard to the air conditioning of the railway cars and the steps which Defendant had taken to remedy the problems.

Essentially, Mr. Case testified that in July of 1980, the Defendant was experiencing approximately a 55 to 65 percent failure rate of the air conditioning systems; that is, they were unable to maintain the interior temperature within the railroad car as specified by its designers and manufacturer. The Court, in passing, wishes to point out that the testimony established that the temperature in an unairconditioned car is usually 30 degrees higher within the confines of Pennsylvania Station, than the ambient temperature outdoors. So, for example, if it was 90o outside, in Penn Station the temperature at platform level in an unairconditioned car would be 120o F.

During the summer months of 1980, the Defendant was aware that passengers were "kicking out" the fixed windows creating a danger to the safety of the passengers and during the month of July, 1980, over 200 windows had to be replaced. Normally, there would be no windows replaced and the witness stated that there was a direct relationship between the inability of the Defendant to provide air conditioning and the windows being "kicked out".

Mr. Case testified that there was "a continuous year-round maintenance program on the air conditioning system on the M-1 car". The system was designed to maintain a 73 degree interior temperature, whether winter or summer. During the last few years, the Defendant observed a problem with the condensor units on the M-1 cars; that the air flow was starting to be blocked within the condensor which is a key portion of the air conditioning system.

The maintenance programs were designed around the manufacturer's original specifications. When the problem was noticed, the Defendant intensified cleaning and "back blowing" the condensor coils to remove the dirt with little success. The cross-section of the condensor coils "is rather small" and "we were trying various chemical cleaners over a two-three year period. Only extremely strong (chemical) cleaners were effective which we were only able to use in certain shop areas. The nature of the dirt clogging the coils and fins was a combination of road dirt, brake shoe dust and salt from the atmosphere". (It should be noted that this condensor was mounted beneath the passenger car and there was no testimony in reference to any filters or protective covers being used either in the winter or summer.)

The witness went on to state that in July, 1980, "we knew we were having a problem and we, together with a chemical corporation, developed a chemical cleaner and were finally able to clean out the condensors to the point where we would get the original air flow back across the coil". It took until mid-August to get an effective air conditioning system in the cars.

This chemical spray, combined with air and water pressure, was used in a program to clean the clogged condensors as an emergency measure. The program entailed two work shifts, seven days a week, in an effort to get all the cars and condensors clean.

Mr. Case acknowledged that there might have been other approaches to resolve the problem, but the Defendant, in its judgment chose not to pursue them. When asked by the Plaintiff, "When were you first aware of the problem", the witness responded, "We had experienced the rising head pressures approximately two and a half to three years ago. This was an ongoing and increasing condition for the past two-three years. We have tried to develop a chemical cleaner that would be safe to utilize". The Defendant did, however, hire a refrigerator technician from the manufacturer of the system, who is still employed by Defendant.

III

Clearly, it has been established that there existed, during the time in question, a lack of air conditioning on certain of Defendant's trains, but Defendant urges that Plaintiff is not entitled to air conditioning. Again, returning to the primary question, just what does the Plaintiff buy when he purchases a ticket from Defendant?

Plaintiff, as a potential passenger on the Defendant LIRR trains, indicated his intention to accept the Defendant's offer to ride the LIRR when he purchased a ticket either from Defendant's ticket agent prior to boarding the train in question, or as sometime occurs, after boarding the train when the passenger may purchase a ticket from the Defendant's employee "on board". Since the traditional contract is complete upon a "meeting of the minds" between the offeror, the LIRR in this case, and the offeree, the passenger, the contract, if there is one, must be one shaped and defined by implication.

An implied contract consists not of a blank canvas, but rather, of the etchings, lines and colors placed on the canvas, by the acts of the parties and thus, is a piece of art created for the viewer to interpret. Where the words between the first sentence and the final clause are non-existent, the terms and their meanings must be supplied by the acts of the parties and a determination made as to whether their expectations are reasonable under all the circumstances.

This contract between the LIRR and the Plaintiff, is not the usual "iron fisted" contract shaped and hammered out upon the anvil of the negotiating table. The passenger has no individual ability to negotiate a contract in the open market place at "arms length". This arrangement is not even comparable to a standard-form contract such as might be found in the banking business, credit business or insurance business. In each of those situations, while the form of the contract is preprinted and may in fact be identical as between one offeror or...