Rivera v. New York City Transit Authority

• Decision Date: 01 May 1990
• Citation: 555 N.Y.S.2d 254,161 A.D.2d 132
• Parties: Ada RIVERA, etc., Plaintiff-Respondent, v. The NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 254

555 N.Y.S.2d 254

161 A.D.2d 132

Ada RIVERA, etc., Plaintiff-Respondent, v.The NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

May 1, 1990.

L. Venezia, for plaintiff-respondent.

L.A. Silver, for defendant-appellant.

Before KUPFERMAN, J.P., and SULLIVAN, ROSENBERGER, ASCH and SMITH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Francis N. Pecora, J.), entered January 5, 1989, which, upon a jury verdict in favor of plaintiff in the amount of $2.2 million, apportioning liability 85% to defendant and 15% to plaintiff's decedent, and, upon denial of defendant's motion to set aside the verdict, awarded plaintiff the sum of $1.7 million for decedent's wrongful death and $170,000 for decedent's conscious pain and suffering, affirmed, without costs.

Plaintiff's decedent was killed when he was struck by a subway train after he fell from the platform of the 42nd Street and Sixth Avenue station.In reports filed with the Transit Police Department and the Transit Authority Transportation Department after the incident, the motorman of the train stated that he saw the decedent staggering on the platform prior to falling onto the tracks.Other passengers awaiting the arrival of the train had also told the police that they had noticed the decedent acting in an erratic manner prior to his fall.In his deposition, the motorman testified that he entered the 42nd Street station at approximately five to ten miles per hour and that he was thirty to sixty feet away when he first saw the decedent fall.However, at trial, the motorman stated that he entered the station "under twenty-five miles per hour" and then, when asked to be more specific, testified that he was proceeding at "10, 15, 20 miles per hour" as he approached the station.He also indicated at trial that he first observed the decedent fall from 30, 45 or 60 feet away.Contrary to the statements he made shortly after the incident, at trial, some eight years after the accident, the motorman testified that he observed the decedent "staggering" off the platform and that "staggering" meant "falling".

In the opinion of plaintiff's expert, a traffic and safety engineer, the combination of the speed of the train and the time taken by the motorman to place the train into emergency, which merely involved the releasing of a handle, caused the accident.This expert based his opinion on the various statements of the motorman and the passengers on the platform as to the speed at which the train was travelling, the time when the motorman first observed the victim and the time he put the train into emergency, the location of the victim's body after the train stopped and the distance between the location of the body and the front of the train.He also reviewed rules, regulations and charts promulgated by the Transit Authority.The expert arrived at his conclusions by basing his calculations on the minimum and maximum speed and distance approximations reported by the motorman in his various statements.It was the opinion of plaintiff's expert that the motorman should have been able to stop the train before hitting the decedent.

Defendant's expert estimated that the train was travelling between eighteen and twenty-one miles per hour when it entered the station.He disagreed with the calculations arrived at by plaintiff's expert because they failed to consider such factors as humidity and the grade of the hill on the tracks leading into the station.In his opinion, the accident was unavoidable.

The experts disagreed as to the significance of Rule 36(j) of the Transit Authority Rules and Regulations, which prohibits any train from exceeding fifteen miles per hour when passing a station.Plaintiff's expert stated that the regulations must logically apply to passenger trains stopping at a station as well, while defendant's expert found no reason to apply the rule to trains which stop to let passengers on and off at stations.However, he conceded that one reason why the rule was enacted was to protect passengers standing on platforms.

We find that the jury's determination was in accordance with the weight of the evidence."For a court to conclude as a matter of law that a jury verdict is not supported by sufficient evidence ... (i)t is necessary to first conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial ... (I)n any case in which it can be said that the evidence is such that it would not be utterly irrational for a jury to reach the result it has determined upon, and thus a valid question of fact does exist, the court may not conclude that the verdict is as a matter of law not supported by the evidence (seeMiddleton v. Whitridge, 213 NY 499, pp 507-508[108 N.E. 192])"(Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145).

While it is true, as the dissent suggests, that the opinion of an expert is not always sufficient to make out a prima facie case (see, Topel v. Long Island Jewish Medical Center, 55 N.Y.2d 682, 446 N.Y.S.2d 932, 431 N.E.2d 293;Tarter v. Schildkraut, 151 A.D.2d 414, 542 N.Y.S.2d 626, appeal denied, 74 N.Y.2d 616, 549 N.Y.S.2d 961, 549 N.E.2d 152), it is also well settled that the weight to be afforded the conflicting testimony of experts is a matter "peculiarly within the province of the jury"(Sternemann v. Langs, 93 A.D.2d 819, 460 N.Y.S.2d 614;see, also, Norfleet v. New York City Transit Auth., 124 A.D.2d 715, 716, 508 N.Y.S.2d 468appeal denied, 69 N.Y.2d 605, 513 N.Y.S.2d 1026, 505 N.E.2d 953;Chodos v. Flanzer, 109 A.D.2d 771, 486 N.Y.S.2d 86).The jury was presented with the opinion of both experts as to the applicability of Rule 36(j) and the proper speed at which a passenger train should enter a station.Plaintiff's expert's testimony regarding the reaction time of the motorman after seeing the decedent staggering on the platform did not amount to speculation or conjecture but rather, was based on the statements of the motorman himself (cf.Cassano v. Hagstrom, 5 N.Y.2d 643, 187 N.Y.S.2d 1, 159 N.E.2d 348, rearg denied, 6 N.Y.2d 882, 188 N.Y.S.2d 1027, 160 N.E.2d 96).His opinion was, therefore, supported by facts disclosed by the evidence (cf.Matter of Aetna Cas. & Surety Co. v. Barile, 86 A.D.2d 362, 450 N.Y.S.2d 10).

Defendant's request for a charge on the Common Law Standard of Care in Emergency Situations was properly denied.PJI 2:14 sets forth the standard of care to be followed by a person faced with an emergency situation who acts without opportunity to consider alternatives.The reasonableness of the course of action pursued by the motorman after the emergency arose is not disputed.Placing the train into emergency was the only alternative available (cf.Ferrer v. Harris, 55 N.Y.2d 285, 449 N.Y.S.2d 162, 434 N.E.2d 231, mod.56 N.Y.2d 737, 451 N.Y.S.2d 740, 436 N.E.2d 1342;Rossman v. La Grega, 28 N.Y.2d 300, 321 N.Y.S.2d 588, 270 N.E.2d 313;Walker v. Barnwell, 122 A.D.2d 605, 504 N.Y.S.2d 1001).

Defendant and the dissent maintain that the introduction into evidence of the New York City Transit Authority Rules and Regulations was improper and that this error was exacerbated by the court's charge which, they contend, permitted the jury to determine "the applicability of any of the more than 150 rules."It should be noted that the applicability of the rules was first raised by defense counsel during cross-examination of plaintiff's expert and was again explored by him on direct examination of defendant's experts.After defense counsel sought to introduce Rule 36 into evidence, plaintiff's counsel requested that the entire rule book be admitted since plaintiff's expert testified that he had reviewed all of defendant's rules and regulations before arriving at his conclusion.The court admitted the rule book into evidence.

Although the rule book contained certain irrelevant material, its admission into evidence did not deprive defendant of a fair trial.Defendant brought the issue of the rules to the jury's attention and was not prejudiced by their admission into evidence.Although the Court of Appeals has held that a rule which imposes a higher standard of care than that owed by defendant is inadmissible (Crosland v. New York City Transit Auth., 68 N.Y.2d 165, 506 N.Y.S.2d 670, 498 N.E.2d 143), the record reveals that a rule imposing such stricter standard was never at issue in this case.Moreover, the court's charge instructed the jury on the proper standard of care to be applied (see, Danbois v. New York Central R.R. Co., 12 N.Y.2d 234, 238 N.Y.S.2d 921, 189 N.E.2d 468).

We further find that the record supports the damages awarded by the jury.The decedent was 29 years old at the time of his death and was the sole means of support for his wife and three year old son.Both expert and lay witnesses testified, inter alia, to the decedent's employment history, job performance, income at death and future earning potential.Such testimony amply supported the jury verdict (see, De Long v. County of Erie, 89 A.D.2d 376, 455 N.Y.S.2d 887, aff'd, 60 N.Y.2d 296, 469 N.Y.S.2d 611, 457 N.E.2d 717).Although the trial court should have instructed the jury, pursuant to defendant's request, that any verdict awarding damages must be itemized (CPLR 4111(f)), the failure to do so does not warrant reversal.

We have considered defendant's remaining contentions and find them to be without merit.

All concur except SULLIVAN and SMITH, JJ. who dissent in a memorandum by SMITH, J. as follows:

SMITH, Justice (dissenting).

I would reverse the judgment because (1)the trial court refused to charge on the law which is applicable when a motorman is faced with an emergency situation; (2) the jury verdict was against the weight of the evidence; (3)the court permitted the jury to...