Skelka v. Metropolitan Transit Authority

• Decision Date: 11 August 1980
• Parties: Ernest SKELKA et al., Respondents, v. The METROPOLITAN TRANSIT AUTHORITY et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 840

430 N.Y.S.2d 840

76 A.D.2d 492

Ernest SKELKA et al., Respondents, v. The METROPOLITAN TRANSIT AUTHORITY et al., Appellants.

Supreme Court, Appellate Division, Second Department.

Aug. 11, 1980.

O'Brien, Kelly & Rode, Mineola (John D. Kelly and Shawn P. Kelly, Mineola, of counsel), for appellants.

Crowe, McCoy, Agoglia, Fogarty & Zweibel, P.C., Mineola (Morris Zweibel and Patrick J. Fogarty, Mineola, of counsel), for respondents.

Before MOLLEN, P. J., and HOPKINS, TITONE and MARTUSCELLO, JJ.

TITONE, Justice.

Plaintiff Ernest Skelka suffered severe personal injuries when he was either pushed or stepped from defendants' train as it was leaving the Patchogue station in Long Island. Although Skelka testified at the trial that he was pushed from the train by a trainman as it was moving, other evidence adduced at the trial by him and defendants indicated that the trainman induced him to step from the moving vehicle. On appeal from an interlocutory judgment in favor of Skelka and his wife after a bifurcated jury trial on the issue of liability, defendants assert that under the circumstances the trial court erred in charging the jury on an inducement theory of liability in view of the fact that Skelka testified he was pushed by the trainman. Subsumed in this issue is the question of what effect a trial court should give the testimony of a party which is adverse to testimony of other witnesses, when the party's cause of action or defense is apparently predicated, inter alia, on the other testimony. Simply put, should such testimony be deemed a judicial admission and thus conclusive against the party giving it, thereby preventing him from obtaining the benefit of contradictory testimony from other witnesses, or, should such adverse testimony be treated similar to the testimony of any other witness called by either side.

Defendants also contend that the trial court erred in charging an operating rule of the railroad pertaining to the preventing of passengers from boarding or leaving a train in motion.

ADVERSE TESTIMONY OF PLAINTIFF ERNEST SKELKA. CHARGE ON INDUCEMENT.

At the trial plaintiff Ernest Skelka, 73 years of age at the time of the bifurcated trial on the issue of liability (February 28, 1979), testified that on December 1, 1974, at about 10:30 A.M., he and his wife accompanied his sister to the Patchogue railroad station of defendants. The sister was returning home after having spent the Thanksgiving holiday with the Skelkas. Since his sister at the time was 74 years of age, Skelka carried her valise onto the train for her. He placed it on a rack, said good-bye to her and turned to leave. According to the testimony of the injured plaintiff, the following then transpired:

"A. Well, I went down the stairs and then I seen that the train was moving. So I told the conductor that I got to get off. So he said, 'You know how to jump,' and I went one step down right on the level with the station platform and then he said, 'Now,' and that's all I remember and off I went, flying out.

"Q. Now, where was the conductor?

"A. He was in back of me.

"Q. And where were you when the train started to move?

"A. I was on the step.

"Q. When he said, 'Now,' and before you went off, did you feel anything?

"A. Well, I feel like a bump or so.

"Q. From where?

"A. From the back."

On cross-examination defense counsel skillfully elicited a damaging admission from Skelka, as reflected in the following colloquy:

"Q. My question to you, sir, is, would you agree with me that it's dangerous to get off a moving train?

"A. It certainly is dangerous.

"Q. Thank you, sir.

"And, sir, is it your testimony to this Court and these jurors that when you got down to that bottom step on this train, you did not intend to get off that train because it was moving? Isn't that right ?

"A. That's right.

"Q. And you tell the jury that under no circumstances would you have gotten off ?

"A. No.

"Q. Because that train was moving ?

"Q. That's right.

"Q. And because it would be dangerous to get off ?

"A. That's right.

"Q. And because you know that a man could fall getting off a moving train, don't you ?

"A. Certainly, yes.

"Q. Mr. Skelka, you told us that the conductor said 'You know how to jump.' Is that what he said?

"A. That's what he said.

"Q. You wouldn't jump because he said that, would you?

"A. No.

"Q. I mean, it wasn't the words of the conductor that caused you to jump, was it?

"Q. It wasn't the words of the conductor that made you go off the train, was it ? It was the push, wasn't it ?

"A. The push, yes.

"Q. In other words, you wouldn't jump just because the conductor said to jump, would you ?

"A. No, no." (Emphasis supplied.)

As part of his direct case plaintiff also introduced into evidence portions of the pretrial depositions of Patrick Hanley, the trainman. Hanley testified at his examination before trial that while he was still on the station platform he gave an all-clear hand signal to the conductor. At the time the train started in motion, which was 30 to 45 seconds after he gave the all-clear hand signal, Hanley was on the bottom step of the car's vestibule. However, during the giving of the signal and the initial movement of the train, Hanley had gone from the platform, up three steps of the car and into the vestibule. At that point he saw plaintiff Ernest Skelka walking up the car aisle and saying that he wanted to "get off the train." Hanley then testified that he went back down the steps followed by plaintiff, stepped off the train while it was in motion, and said to plaintiff "Step down." Mr. Skelka proceeded to step from the moving train, fell, and landed on the concrete platform.

Testifying at the trial on behalf of defendants, Hanley stated on direct examination that he did not push Skelka off the train, that actually he was standing on the station platform in front of Skelka at the time the latter stepped or fell from the train. He also denied saying to Skelka, "You know how to jump."

However on cross-examination Hanley testified that the train had just started in motion before he stepped off it. He admitted that while the train was still in motion he told Skelka to "step down" and that Skelka then ended up on the station surface.

In addition to instructing the jury that it should return a verdict in favor of the plaintiffs if it found that Mr. Skelka was pushed from the train while it was moving, the trial court gave the following alternative instruction which may be referred to as "the theory of inducement":

"If, however, you do not find by a fair preponderance of the credible evidence that the plaintiff was pushed from the train, you will consider whether the plaintiffs by a fair preponderance of the credible evidence, have established that the defendants breached any duty of ordinary care owed to the plaintiff, Ernest Skelka.

The plaintiffs also contend that the defendants' agent and employee, Patrick Hanley, was guilty of negligence which was a proximate cause of this accident in that by his words, 'You know how to jump,' and 'Step down,' he importuned plaintiff to step from defendant's (sic ) conveyance, to the station platform, while the train was moving. If you find that such words by defendants' employee were calculated to divert the plaintiff's attention from the danger involved in alighting from a moving train, or were designed to create in the plaintiff the confidence that the attempt could be made with safety, then such words may be considered as some evidence of negligence on the part of defendants' employee, provided further that such action was a proximate cause of the accident."

The extent to which a party is bound by testimony of his own which is adverse to other testimony presented during the trial which is favorable to him has been characterized as one of the most troublesome questions in the law of evidence (Koserkoff v. Chesapeake & Ohio Ry. Co., 427 F.2d 1049, 1054, cert. den. 401 U.S. 947, 91 S.Ct. 924, 28 L.Ed.2d 230, reh. den. 402 U.S. 934, 91 S.Ct. 1521, 28 L.Ed.2d 867; Bowlin v. Black & White Cab Co., 7 Ohio App.2d 133, 219 N.E.2d 221).

In those jurisdictions where the testimony of a party adverse to his contentions is regarded as a judicial admission, he is bound and concluded by such testimony (Grau v. Mitchell, 156 Colo. 111, 397 P.2d 488; White v. Doe, 207 Va. 276, 148 S.E.2d 797), and he may not contradict the fact so admitted either by his own testimony or by other witnesses (Stodgell v. Mounter, 344 S.W.2d 100 (Mo.)). Furthermore, in such jurisdictions a party may not rely on other evidence such as that presented by his adversary to establish that a fact is contrary to his admission (Elkin v. St. Louis Public Serv. Co., 335 Mo. 951, 74 S.W.2d 600).

However, although it has also been held that a party is generally bound and concluded by his own uncontradicted testimony, whether elicited on direct or cross-examination (Reeder v. Guaranteed Foods, 194 Kan. 386, 399 P.2d 822), with respect to contradicted testimony, in some jurisdictions a party is not deemed to be concluded by his own testimony but may have the benefit of more favorable evidence which contradicts his own (King v. Spencer, 115 Conn. 201, 161 A. 103; Charles Dowd Box Co. v. Fireman's Fund Ins. Co., 351 Mass. 113, 218 N.E.2d 64), even in situations where such evidence is supplied by the adverse party (Pullman Co. v. Teutschman, 9 Cir., 169 F.2d 979; Gleason v. Mann, 312 Mass. 420, 45 N.E.2d 280), since a party may be mistaken in his testimony, like any other witness (Mitchell v. Lynn Fire & Police Notification Co., 292 Mass. 165, 197 N.E. 456; Alamo v. Del Rosario, App.D.C., 98 F.2d 328). This rule has been held especially applicable where the testimony relates to an accident or similar event because in such instances testimony is particularly subject to inexactness of observation and memory (Rueger v. Hawks, 150 Neb. 834, 36 N.W.2d 236, cf. Cox v. Jones, 138 Or. 327, 5 P.2d 102; Kanopka...