37 N.Y.2d 137 | NY | 1975
Lead Opinion
Plaintiff, aged 20 and claiming to have been mugged and thrown upon the subway tracks at the Canal Street station, suffered amputation of both legs below the knees while lying upon the tracks and when struck by defendant’s train.
First, there was a trial on the issue of liability only, resulting in a verdict in favor of plaintiff. The interlocutory judgment entered thereon was affirmed by the Appellate Division,
Where a motorman of a subway train sees a person lying on the tracks abutting a subway station platform, from such a distance and under such other circumstances as to permit him, in the exercise of reasonable care, to stop before striking the person, the motorman’s failure to avoid the accident may be found to be negligence (Noseworthy v City of New York, 298 NY 76, 78-79; Clarke v City of New York, 295 NY 861; Brennan v City of New York, 277 App Div 854; Mikorski v City of New York, 270 App Div 769, mot for lv to app den 270 App Div 819). With this general rule in mind and aside from testimony as to the actual occurrence of the tragedy, considerable proof was submitted as to the locale of the accident, sight distances and stopping capabilities of subway trains.
The platform in question, at the Canal Street subway station of the IND Division, was used by downtown travelers and ran in a generally northerly and southerly direction for a length of 660 feet. Adjacent to it and' to the west were the southbound local tracks. As a train proceeding south comes into the Canal Street station, at a point 44 feet south of the north end of the station, it approaches a transition or easement curve, based on a 1,000 foot radius, it being described as a slight curve to the left. While Joseph Sigreti, defendant’s motorman, was operating a four-car train from the right side of the lead car along these southbound local rails, plaintiff was run over by the first half of the front vehicle and was removed from underneath that car, at a point 320 feet south from the north end of the station.
During the liability trial, evidence was adduced relevant to the crucial question as to whether Sigréti, who admittedly saw plaintiff lying across the tracks, in the exercise of reasonable care, should have halted the train before impact. On the one hand, there was submitted testimony of: the plaintiff that he was unable to get up but saw the train at the beginning of the
Appellant ascribes various reasons for reversal, chiefly the following instruction to the liability jury, to which exception was taken: "Now, in this case the plaintiff is an interested witness because he seeks to recover. The witnesses, all employees, including Sigreti, even though he’s no longer in the employ of the Transit Authority, is an interested witness
The scope of the circumstances of interest that may be employed to discredit witnesses has not been definitely circumscribed, but it is clear that it is not confined to financial bases alone (Noble v Marx, 298 NY 106, 111, Wohlfahrt v Beckert, 92 NY 490, 496; Hoes v Third Ave. R. R. Co., 5 App Div 151, 155; 3 Bender’s New York Evidence, § 147.05, subd [2]; 3A Wigmore, Evidence [Chadbourn rev, 1970], § 966). It is firmly established, for example, that an actor in the transaction at issue, having a motive to shield himself from blame, would be an interested witness, even though not a party to the action (Lee v City Brewing Corp., 279 NY 380, 384; Gaffney v New York Cons. R. R. Co., 220 NY 34, 37; Volkmar v Manhattan Ry. Co., 134 NY 418, 422). Thus, Sigreti, who was the only witness who testified directly as to the point from which he first saw plaintiff lying on the tracks, was an interested witness.
The mere employer-employee relationship existing between a party and a witness, either at the time of the incident in suit or at the time of trial, does not make the employee an interested witness, although it may give rise to bias (Noseworthy v City of New York, 298 NY 76, 79, supra; Della Croce v City of New York, 3 AD2d 920; Hoffman v Florida East Coast Hotel Co., 187 App Div 146, 151). The bias of a witness in favor of the party calling him may be shown by evidence of family, business or close social relationships to affect his
Defendant contends that, with the exception of motorman Sigreti, it was error to charge in effect that all employees were interested. Other than Sigreti and McCafferty, the testimony of the employees dealt, for the most part, with undisputed matters such as dimensions of the platform, visibility, point of impact, observations as to plaintiff’s physical condition and statements made by Sigreti. Although the court characterized McCafferty as interested and Doty as not interested, to which latter portion exception was not taken, each testified that the stopping distance of a train proceeding at 30 miles per hour was under 300 feet. Although they differed as to the stopping distance, there were various items of proof indicating that the motorman had seen plaintiff when more than 300 feet distant —contrary to Sigreti’s at-trial testimony.
The Appellate Division determination that the charge, indicating that employees of the defendant were interested witnesses, was not reversible error, in view of the nature of their testimony, is consistent with precedent. In Jobman v Hogan & Sons (216 App Div 736, affd 243 NY 581), we affirmed, without opinion, an order of the Appellate Division which affirmed a judgment for plaintiff, where the trial court charged that employees of defendant not connected with the accident were interested witnesses and where exception was taken. The authorities cited by defendant and in one dissent are clearly distinguishable in that they also involve other errors. In Della Croce v City of New York (3 AD2d 920, supra), the verdict was excessive or against the weight of the evidence, there was lack of proof, and the jury was not apprised of the applicable principles attendant the doctrine of res ipsa loquitur so as to appreciate the importance of determining the credibility of the bus operator. In Noseworthy v City of New York (298 NY 76, 81, supra), a death case, the court refused a proper request for a charge as to the degree of proof to which plaintiff was held and there "were other incidents and rulings at this trial of which plaintiff rightfully complains.” In Hoffman v Florida East Coast Hotel Co. (187 App Div 146, 152, supra), three
Defendant urges that plaintiff was guilty of contributory negligence, that the jury could have inferred that he fell to the tracks as a result of his intoxication, rather than being thrown there by muggers, and that the trial court, in responding to a juror’s question, removed the issue of contributory negligence from the jury’s consideration. The jury was charged: "in order for the plaintiff to recover in this action he must also establish an additional factor, that is his own freedom from any contributory negligence. In other words, plaintiff also had an obligation to exercise that degree of care for his own safety which an ordinarily prudent person would have exercised under the same circumstances. * * * If the plaintiff failed for whatever reason to exercise that degree of care which a reasonably prudent person would have exercised under the same circumstances, then he would have been guilty of contributory negligence and could not recover.” These instructions, plus their repetition in substance upon the jury’s return for advice, placed contributory negligence before the jury. In response to a juror’s inquiry: "On drunkenness, just when is drunkenness considered negligence? One drink, two drinks, three drinks?”, the court responded: "There is no such test. Unless you think he was drunk and there’s proof that he was drunk you may not find him drunk. The only evidence in this case is he had three drinks, and Alcindor says he couldn’t say he was drunk, and nobody else in the case says he was drunk. That’s the only evidence in the case.” Although the accident occurred in the early morning, plaintiff left his place of employment at 3:05 a.m., went to a bar looking for friends but had nothing to drink, went to another bar where he had two drinks of scotch and then returned to the first bar where he consumed another. He testified he was not drunk and no one testified he was. Lieutenant Alcindor, employed by the Transit Authority, in helping remove plaintiff from the tracks and in coming face to face with him, smelled alcohol but stated he was not prepared to say that plaintiff was drunk. The three drinks and Alcindor’s observations were mentioned in the factual summary of the charge. The evidence of alcoholic breath and the three drinks is not in itself proof of intoxication and the court did not err in telling the jury that whether plaintiff had one, two or three drinks
Defendant contends that it was deprived of a fair trial when the court, upon being asked for an "indication as to taxability of the award to the plaintiff”, instructed the jury: "Don’t concern yourselves with that. It forms no part of your deliberations. It is not an element to be concerned by you. Do not consider that at all.” One dissenter suggests that "[a]ll that would be required is an instruction that any award made to the plaintiff as damages is not subject to Federal and State income taxes, and the jury should not consider such taxes in fixing the amount of any award made to the plaintiff.”
Although there is division on the question, the great weight of decisional authority in this country, in respect to a case such as this, is to the effect that the Judge was not required to charge the jury that any award to the plaintiff would be free of income tax (e.g., Blake v Delaware & Hudson Ry. Co., 484 F2d 204, 207; Matter of Marina Mercante Nicaraguense, S. A., 364 F2d 118, 125-126, cert den 385 US 1005; McWeeney v New York, New Haven & Hartford R. R. Co., 282 F2d 34, 35-39, cert den 364 US 870; Stokes v United States, 144 F2d 82, 87; Towli v Ford Motor Co., 30 AD2d 319; D'Amico v Resnik, 22 Misc 2d 545, 548 [Scileppi, J.]; see 13 NY Jur, Damages, § 79; Encyclopedia New York Law, Damages [1975 Supp], §§ 1031, 1142; 63 ALR2d 1393, 1398, § 4).
The order of the Appellate Division should be affirmed, with costs.
Dissenting Opinion
(dissenting). A reversal and new trial is required here solely upon the ground that the trial court’s instructions to the jury with regard to the interest of witnesses and the issue of intoxication as contributory negligence were erroneous.
In this negligence action, the plaintiff sought to recover damages for severe physical injuries he sustained when he was struck by a New York City Transit Authority subway train while he was lying on the tracks at a station in the early morning hours on a holiday weekend. The plaintiff claimed that he had been assaulted and thrown onto the tracks while waiting for the train and that he was unable to extricate himself before the train approached. He alleged that the motorman failed to have the train under reasonable and
The first error concerns the court’s instruction as to interested witnesses. The Authority called as witnesses several of its past and present employees. These included the motorman, who was no longer an employee when the case was tried, a motorman instructor, a police officer and an engineer, all of whom were still employed by the Authority. To prove that the motorman had exercised due care, it was crucial that the Authority, among other things, establish the precise point along the length of the platform where the plaintiff had fallen, the point from which an object or a person on the tracks could be first seen by a motorman in an approaching train as it came out of a curve and into the station, and the emergency stopping distance from that point at normal speeds. The testimony given by plaintiff’s paid expert, himself a former motorman, and by the Authority’s employee-witnesses did not agree in all substantial aspects. Hence, these matters formed the crux of the jury’s fact-finding assignment.
Against this background, the court’s erroneous instruction as to interest of witnesses significantly increased the likelihood that the Authority’s version of the facts and circumstances presented in this unfortunate accident would be discredited by the jury. The court charged on the interest of witnesses as follows: "Now, in this case the plaintiff is an interested witness because he seeks to recover. The witnesses, all employees, including Sigreti [the motorman], even though he’s no longer in the employ of the Transit Authority, is an interested witness because he’s charged with negligence. Therefore, he’s an interested witness when he comes in and denies his conduct and his act. The expert of the Transit Authority is an interested witness because he works for the Transit Authority. Mr. Doty [plaintiff’s expert] is an expert and is a disinterested witness.” (Emphasis added.) There can be little doubt that the jury would interpret this instruction as requiring that they view all of the Authority’s employees as interested witnesses.
Certainly, the motorman, Sigreti, as an actor in the transaction out of which the cause of action arose, but he alone among the Authority’s employees, was an interested witness because of his motive to shield himself from blame. (O’Flaherty v Nassau Elec. R. R. Co., 34 App Div 74, 77, affd 165 NY
In addition to incorrectly instructing the jury with regard to the interest of witnesses, the trial court also improperly charged the jury, in its supplemental instruction, on the issue of intoxication as contributory negligence. The plaintiff had originally grounded his case alternatively on a "last clear chance” theory. However, that cause of action, and also a third cause of action based on alleged inadequate police supervision of the subway station, were dismissed upon the Authority’s motion.
In its initial charge, the court did instruct the jury as to contributory negligence, albeit in summary form. However,
The record also discloses that the trial jury at the separate trial to determine the amount of damages asked the court for additional instructions "as to taxability of the award to the plaintiff.” Rather than answering the question directly, the court responded: "Don’t concern yourselves with that. It forms no part of your deliberations. It is not an element to be
Whether a jury should be apprised that awards made in personal injury actions are not taxable under the Federal and State income tax laws is a question that I believe merits comment. The courts, both State and Federal, which have considered the question, have answered it in different ways.
While it may be said that present day jurors have displayed much sophistication by carrying out their responsibilities as triers of the facts, it does not follow that the average citizen and juror is generally aware that personal injury awards are specifically exempt from taxation. More likely, it is reasonable to assume that the average juror would believe such an award is subject to income taxes. Perhaps this erroneous belief results from the widespread attention given by the media to the sums of money, often of windfall proportions, that are won in the New York State lotteries and various contests conducted on television. An empirical survey would no doubt show that the vast majority of our citizens would expect such windfalls to be taxed. This may be no more than an outgrowth of the modern fact of life that all governments are endlessly undergoing one fiscal crisis after another, or so it seems, and that as a result, the taxing authorities will of necessity permit very little, if anything, to escape taxation. Hence, the pervasive import of taxation — Federal, State and local — in the lives of our citizens, and the public’s awareness of it, cannot be
Since it is an elementary rule of damages that the purpose of personal injury compensation is neither to reward the plaintiff nor to punish the defendant, but solely to replace plaintiff’s losses, I believe a rule in personal injury actions requiring the Trial Judge to instruct the jury that any award made by them will not be subject to Federal or State income taxes would dispel any misconception in the minds of the jury that the award is subject to income taxes. Only when a jury is specifically instructed that the award will not be taxed can we be certain that it will not speculate that the award is subject to income taxes and increase the award significantly to compensate for such tax loss. It should also be said that the instruction would not require the introduction of any additional evidence" or open the trial to matters irrelevant to traditional issues in personal injury litigation. All that would be required is an instruction that any award made to the plaintiff as damages is not subject to Federal and State income taxes, and the jury should not consider such taxes in fixing the amount of any award made to the plaintiff. In other words,, a jury should be told that when it arrives at an amount of damages under the court’s charge, it is not to add any sum of money to that amount for Federal and State income taxes.
I recognize that my approach to this problem represents a new view in our court and, therefore, I would not hold that the failure of the Trial Judge to answer the question asked by the jurors, as to the taxability of the award, was error.
. On appeal, the plaintiff did not challenge the dismissal of those causes of action.
. For compilations of the pertinent cases, see Ann., 63 ALR2d 1393; Nordstrom, Income Taxes and Personal Injury Awards, 19 Ohio St LJ 212, 213, n 3.
. 2 Harper & James, Law of Torts, § 25.12, pp 1327-1328; Bums, A Compensation Award for Personal Injury or Wrongful Death is Tax-Exempt: Should We Tell the Jury?, 14 De Paul L Rev 320; Feldman, Personal Injury Awards: Should Tax-Exempt Status Be Ignored?, 7 Ariz L Rev 272; Nordstrom, Income Taxes and Personal Injury Awards, 19 Ohio St LJ 212, n 2; Comment, Personal Injury Awards and the Nonexistent Income Tax — What is a Proper Jury Charge?, 26 Fordham L Rev 98; 44 Ky LJ 384; Note, Consideration of Tax Aspects in Awarding Damages for Personal Injuries, 9 Vand L Rev 543; 50 Ky LJ 601; 4 UCLA L Rev 636; 25 Cin U L Rev 385; 11 Wash & Lee L Rev 66; 42 Ga LJ 149; 32 Tex L Rev 108; Opposing Instruction: Comment, Propriety of Comment on Non-Taxability of Personal Injury Verdicts, 21 U Chi L Rev 156; 35 NC L Rev 401; 42 Iowa L Rev 134; 8 Ark L Rev 174; 33 Boston U L Rev 114.
Concurrence in Part
(concurring in dissent). I agree entirely with the dissenting opinion by Judge Jasen, except so much of the latter part which would permit or require instruction in personal injury cases to juries on the income tax consequences of awards in favor of successful plaintiffs. The problem is a complicated one and not simply resolved. Apart from the intricacy of the tax laws, I do not see how or why the tax problem should be separated from those of the different varieties of insurance, including Medicare and Medicaid, and not least of all, by any means, lawyer fees and costs of investigation and experts. I understand the temptation to treat with the problem but do not believe the time has arrived
Accordingly, I dissent and vote to reverse and grant a new trial for the reasons stated by Judge Jasen in assigning as errors the jury instructions on interested witnesses, and plaintiff's contributory negligence and likely intoxication.
Judges Gabrielli, Jones, Wachtler and Fuchsberg concur with Judge Cooke; Judge Jasen dissents and votes to reverse in a separate opinion in which Chief Judge Breitel concurs in part in another opinion.
Order affirmed.
