75 A.D.2d 126 | N.Y. App. Div. | 1980
OPINION OF THE COURT
Beverly Juiditta, age 33, was killed in the early morning hours of August 8, 1970 when she was struck by a railroad car operated on property and tracks owned by the Pennsylvania
On this appeal from the judgment entered by the trial court and from orders denying motions for other relief, South Buffalo claims that (1) plaintiff failed, as a matter of law, to establish a prima facie case of negligence; (2) Ms. Juiditta was guilty of contributory negligence as a matter of law and the jury’s decision to the contrary was against the weight of the evidence; (3) no award for conscious pain and suffering was justified, or, in the alternative, the verdict was clearly excessive and should be greatly reduced; and (4) the award for wrongful death, even as reduced, if sustainable at all, was excessive and should be substantially reduced.
The evidence presented at trial reflects the following facts: In the early morning hours of August 8, 1970 Fred Proctor, George Bentley and Alvin Castin, employees of the defendant South Buffalo, left the railroad yard where they were on duty and went to the Berman Inn approximately three miles away. While there, the trio met the deceased, Ms. Juiditta, and Nancy Bartolomeo. Thereafter, Castin, who had driven the three men to the inn, stated that he wanted to talk with Ms. Bartolomeo privately. Ms. Juiditta agreed to drive Proctor and Bentley back to the railroad yard in her car. The group was to meet at a parking lot near the area "L” building at the railroad yard. Castin and Ms. Bartolomeo left the inn first.
When Ms. Juiditta drove back to the railroad yard she followed Proctor’s directions and proceeded north along a service road used by the employees of the defendant to go to and from work. As they were traveling on the service road, a Pennsylvania Railroad train pulled into the yard, blocking the service road which led to the parking lot where the group was
At his office in area "L” building, Proctor commenced some paperwork. Five to 15 minutes later he heard railroad cars moving and a simultaneous scream. Bentley and Proctor left the office and found Ms. Juiditta, severely injured, lying alongside track 4D. Her injuries included extensive lacerations to her right arm and breast; her left leg was almost completely torn off at her thigh. The accident occurred at approximately 3:45 a.m. and she was removed by ambulance at 4:25 a.m. She died at approximately 4:45 a.m. from shock and loss of blood. Evidence at trial tended to prove that she was conscious until the time of her death.
Ms. Juiditta was struck by the front end of the lead car of a string of 21 railroad cars which had been shoved north on track 4D by South Buffalo. These cars which were parked on track 4D blocked access to the adjacent track 3D. Track 3D was needed by South Buffalo to deliver cars from the Bethlehem Steel plant, situated to the south of the interchange yard, to the Pennsylvania Railroad train which was waiting on tracks to the north. After obtaining clearance from a yard master (not Proctor) in area "D” (located south of area "L”), the South Buffalo train of 53 cars traveling north from the Bethlehem Steel plant coupled onto the 21 cars and pushed them north to clear access to track 3D. The 21 cars on track 4D were rolling free after having been pushed by and uncoupled from the South Buffalo train, when they struck Ms. Juiditta. A trainman ("hind-end man”
Following the accident, Ms. Juiditta’s automobile was found
At trial, plaintiff offered proof to show that South Buffalo violated its own safety rules and that these violations caused the wrongful death of Ms. Juiditta. In support of this theory plaintiff specifically cited the following two breaches: (1) the failure of South Buffalo to sound a bell or horn before starting to push the cars on track 4D, and (2) the failure of South Buffalo to have a "hind-end man” ride the lead car of the string of 21 cars.
South Buffalo owned and controlled the train which
The thrust of defendant’s argument is that the risk of injury to Ms. Juiditta was not reasonably foreseeable and that "[n]one of the train crew * * * had any knowledge of [Ms. Juiditta’s] presence, or any reason to anticipate that she might be in the area, nor any way to determine that she was in the area”. South Buffalo contends that Castin, Proctor and Bentley were not acting within the scope of their employment when they left the premises and were returning thereto and
Generally, "knowledge possessed or notice received by an agent is chargeable to the principal when not actually communicated only when relevant to matters entrusted to the agent and within his authority so that it is his duty to communicate such knowledge or notice to the principal” (3 NY Jur 2d, Agency and Independent Contractors, § 264). "[Knowledge acquired by an agent while acting for his principal, if relevant to the scope of his employment, is chargeable to the principal, assuming that the agent is not acting adversely [to his employer’s interests] and that there is no duty upon him not to disclose his knowledge” (3 NY Jur 2d, Agency and Independent Contractors, § 265).
Proctor, Bentley and Castin were apparently acting outside the scope of their employment and adversely to South Buffalo’s interests during the time in question. The trio’s jaunt to the Berman Inn exceeded the time period allotted to railway employees for lunch and violated the instructions of their supervisors. While at the inn, the men consumed alcoholic beverages, a practice expressly prohibited by South Buffalo’s safety rules.
Yet, there are other relevant factors, disclosed by the proof, related to the issue of foreseeability. Photographic exhibits in evidence establish that at the entrance to the service road used by Ms. Juiditta on August 8, 1970 a sign stating "private property—no trespassing” was posted. The service road is wide (easily accommodating two lanes of traffic) and although it is not paved, it appears to be well maintained. There was proof that the road intersects with Lake Avenue, a well-traveled public highway serving a populated area. The service road is accessible to the public; no guard, gate or barrier obstructs passage on the road. There is also proof that the road is owned by South Buffalo and used by its employees going to and from work. The existence of a parking lot adjacent to the yard office at area "L” evinces the road’s regular use. Also, the record reflects that the service road at various points runs close to the railroad tracks in the interchange yard and that there is no embankment or fence between the road and the tracks. Nothing exists to denote the presence of danger to those unfamiliar with the area.
The sign warning against trespassing evinces that South Buffalo anticipated that persons, other than employees, would use the service road for access to the interchange yard—an area where they (unwittingly) might place themselves in danger. South Buffalo was aware of the proximity between the railroad tracks and the service road. Yet, there is nothing to prevent nonemployees who are not "trespassing” from entering the interchange area via this service road. "A trespasser is one who goes upon the premises of another without invitation, expressed or implied, and does so out of curiosity or for his own purposes or convenience, and not for the performance of any duty to such owner” (61 NY Jur, Trespass, § 1). Ms. Juiditta, a nonemployee, was not a trespasser. She entered the premises not for her own purposes but for the purpose of transporting South Buffalo employees at their invitation to their place of work. Thus, the no trespassing sign did not bar her entrance; it did not constitute a warning that the road was "off limits” to her. There was no sign on this road giving her notice that only South Buffalo employees could enter the property. It is of no moment that Proctor and Bently may not have had actual authority to invite Ms. Juiditta on railroad property. They possessed apparent authority to grant permis
Moreover, the adoption by South Buffalo of its safety rules has probative value and relevance' in determining whether, under all of the facts and circumstances, injury to someone was foreseeable upon a violation of the rules. It is apparent that the rules were designed to prevent this type of accident. For example, there would be no need for a rule requiring that a locomotive horn be blown unless it was within the ambit of apprehension that someone would be on or near the railroad tracks and be warned thereby of the approach of a train. Lack of knowledge, in fact, of someone’s presence on the tracks would not excuse South Buffalo from observing its own rules.
As we have previously noted the question of foreseeability is one for the jury when varying inferences can be drawn from the facts (Palsgraf v Long Is. R. R. Co., 248 NY 339, 345, supra). In view of the varying inferences that can be drawn from the trial proof, the jury could well find that the risk of injury to Ms. Juiditta was reasonably foreseeable by South Buffalo (see Prosser, Torts [4th ed], § 37). Her presence was not so improbable as to be unforeseeable as a matter of law. The court should be hesitant to take the case from the jury where reasonable people could well differ on whether the incident was foreseeable.
Next, we turn to and consider the issue of whether there is a sufficient proof in this record to establish that South Buffalo was negligent. Although South Buffalo must conduct dangerous activities in the course of its business operations, it is required to take reasonable measures to prevent injury to those whose presence can be reasonably foreseen on its premises. The theory on which the case was tried was that South Buffalo had violated its own safety rules (set forth above). South Buffalo argues that its safety rules cited by plaintiff are irrelevant and, in any event, were not violated. Plaintiff presented proof from which the jury could have inferred that defendant failed to sound a horn before moving the cars "out foul” on track 4D. Although the train’s engineer testified that it is standard procedure for him to blow a "whistle” before
Likewise, whether the absence of a trainman riding the lead car of the string of 21 cars that struck Ms. Juiditta was in violation of the defendant’s own safety rules and constituted negligence was a question for the jury. Arguably, the safety rule upon which plaintiff relies does not require that a trainman must ride the lead car of a moving train and look forward so as to be in a position to warn others. But we need not speculate as to the intended meanings of the rule. Under the circumstances as shown by the record, questions as to what purpose the safety rules were to serve, and what meaning should be ascribed to the rules are also questions of fact for the jury. A violation of the rules is not negligence per se (see Martin v Herzog, 228 NY 164) but may be regarded by the trier of the facts as some evidence of negligence (Danbois v New York Cent. R. R. Co., 12 NY2d 234, 239; Admissibility in evidence of rules of defendant in action for negligence, Ann. 50 ALR2d 16). It is the jury’s province to find that violation of the rule fell below the standard of reasonable care.
In a wrongful death action the plaintiff is not held to as high a degree of proof as plaintiffs in personal injury actions (Noseworthy v City of New York, 298 NY 76) and is entitled to the benefit of every favorable inference which can be reasonably drawn from the evidence in determining whether a prima facie case has been made (Carpino v Baker, 66 AD2d 201, 205; Lattimore v Falcone, 35 AD2d 1069). Where
The defendant’s contention that Ms. Juiditta was guilty of contributory negligence as a matter of law and that the jury’s decision to the contrary was against the weight of the evidence is without merit. The issue of contributory negligence is almost always a question of fact for the jury (MacDowall v Koehring Basic Constr. Equip., 49 NY2d 824; Wartels v County Asphalt, 29 NY2d 372, 379; Rossman v La Grega, 28 NY2d 300, 306; Carpino v Baker, 75 AD2d 540; Jackson v Livingston Country Club, 55 AD2d 1045). If any possible hypothesis based on the evidence forbids the imputation of fault to the deceased, as a matter of law, the question is for the jury (Cruz v Long Is. R. R. Co., 28 AD2d 282, 285).
There are many reasonable interpretations of the facts where one could find Ms. Juiditta free of contributory negligence. She could have been lost and confused, or perhaps ill. She may also have had car trouble and crossed the tracks in search of assistance. It is also possible that she was attempting to rendezvous with her friend, Ms. Bartolomeo, át the parking lot near Building "L”, as she had previously planned. All these are possible interpretations. The fact that she saw Proctor and Bentley exit her car and cross the railroad tracks in front of Building "L”—minutes before she would attempt the same route, bears on the reasonableness of her action in crossing the railroad tracks. In any event, there are sufficient
Lastly, we address South Buffalo’s contentions that the verdicts for conscious pain and suffering and wrongful death were excessive. If a verdict is insufficient or excessive to such an extent as to indicate that it resulted from sympathy, passion, prejudice or corruption, this court may set it aside or order that the judgment be reversed unless the parties stipulate to an increase or decrease. However, "[t]o avoid usurping the function of the jury, th[is] power should be used only if the verdict is so disproportionate to the injury as to not be within reasonable bounds” (Riddle v Memorial Hosp., 43 AD2d 750, 751; see, also, McAllister v Adam Packing Corp., 66 AD2d 975, 976). A jury’s assessment of damages should not be disturbed unless it is so excessive or inadequate that it shocks the conscience of the court (Petosa v City of New York, 63 AD2d 1016, 1017; Welty v Brown, 57 AD2d 1000, 1001). Each case must be assessed on its own peculiar facts and circumstances.
In determining damages for conscious pain and suffering experienced in the interval between injury and death, when the interval is relatively short, the degree of consciousness, severity of pain, apprehension of impending death along with duration are all elements to be considered (Tenczar v Milligan, 47 AD2d 773, 775; Cook v Erwin, 30 AD2d 579). There was proof that the deceased was left lying on the railroad track after she was struck by the railroad car until approximately 4:25 a.m. (or around forty minutes); that the deceased screamed; that after Ms. Juiditta was struck she was alive, and was bleeding profusely as she lay along the tracks; that a railroad employee tried to stop the bleeding by applying a tourniquet; and that she was making noises and breathing sounds. There was also proof that when asked her name, she responded, "Beverly”. Nothing in this record reflects that the jury’s verdict of $70,000 for conscious pain and suffering was so disproportionate to the injury as to not be within reasonable bounds (Riddle v Memorial Hosp., supra; see, also, Mc-Allister v Adam Packing Corp., supra).
Accordingly, the judgment of Supreme Court should be affirmed.
Simons, J. P., Hancock, Jr., Doerr and Moule, JJ., concur.
Appeal No. 1.—Order unanimously affirmed.
Appeal No. 2.—Judgment unanimously affirmed, with costs to plaintiff.
. A "hind-end man” is a trainman who aligns the switches for the intended movement of the train and is usually on the rear end of a line of cars during a pulling movement or on the front end of a shoving movement.
. The "Safety Rules” for South Buffalo contain the following provisions:
Rule 8.1—"The primary purpose of standard work signals is safety. To avoid accidents, signals must be properly given and strictly observed.”
Rule 8.7—"The following are standard locomotive horn signals:
"Note: The signals prescribed are illustrated by 'o’ for short sounds; '—' for longer sounds. The sound of a horn should be distinct, with intensity and duration proportionate to the distance signal is to be conveyed.
SOUND INDICATION
b..- -- Release brakes. Proceed.”
Rule 8.8—"The locomotive bell must be rung when the locomotive is about to move, when moving in area where workmen are on or about the tracks, and when approaching and passing over road crossings.”
Rule 18.1—"Ride the side ladder on the leading end of a car whenever possible.”
The Safety Rules also contain, inter alia, two photographs depicting a "right” and "wrong” method for riding railroad cars. In the picture labeled "wrong”, a trainman riding the lead end of a moving car, is not looking in the direction of movement. The text accompanying the two pictures, entitled "Close Clearance Between Yard Tracks”, states that the trainman in the "wrong” picture "may be knocked off [the] car to ground [by a car on an adjacent track] resulting in injury”. In the picture labeled "right”, a trainman is riding the lead car of a moving car but is looking forward in the direction of travel. The text states that this trainman "is riding a car in such a manner as to protect himself from injury and is also in a position to warn others.”
. The court charged, without exception by South Buffalo, that if the jury found these claims to be "the facts”, South Buffalo "is not responsible for the acts of [these] employees, including bringing Mrs. Juiditta on South Buffalo Railway Company property and is not chargeable with knowledge of her presence there simply because such employees had such knowledge”.
. Rule 1.4 of South Buffalo’s safety rules provides: "The use of intoxicants or narcotics by employees subject to duty, or their possession or use while on duty, is strictly prohibited”.
. The weight of the evidence establishes that South Buffalo’s alleged failure to ring the locomotive’s bell prior to moving on track 4D was not the proximate cause of the accident. Unrebutted testimony shows that a locomotive’s bell cannot be heard for more than 10 to 15 cars away and that Ms. Juiditta would not have been able to hear the sound of the bell from a distance of 74 cars.
. South Buffalo did not own the land and tracks where the incident occurred and thus section 83 of the Railroad Law apparently has no application (cf. Merriman v Baker, 34 NY2d 330). South Buffalo did not raise the question of the statute’s applicability either before the trial court or on this appeal. Further, the record is silent as to the relationship between South Buffalo and the Pennsylvania Railroad Company and the exact location of the South Buffalo railroad tracks in the area.