91 A.D.2d 143 | N.Y. App. Div. | 1983
OPINION OF THE COURT
The 13-year-old plaintiff, playing near the railroad tracks on a summer evening in 1971 in the vicinity of Riverside Park in Manhattan, was grievously injured when he fell onto the tracks and was struck by a Penn Central train, losing both his legs. The jury awarded him damages of $600,000 apportioned 50% against the City of New York, 40% against Penn Central and 10% against joint venturers Poirer & McLane Corporation and Raymond DiMenna Corporation, who were under contract with the city for sewer construction in the area. His plaintiff mother was awarded compensation for medical expenses, notwithstanding a jury verdict to the contrary.
The infant plaintiff appeals from the judgment as inadequate. He and his plaintiff mother appeal from denial of their motion to set aside the verdict as inadequate. Penn Central and the contractors appeal from the judgment. The city cross-appeals from denial of judgment over against the contractors.
Riverside Park is a long, narrow strip running north and south between Riverside Drive and the Hudson River, along the western edge of northern Manhattan. The Penn Central railroad tracks run through the park from about 123rd Street north. Near 139th Street, the vicinity of the accident, the public use area of the park, consisting of a grassy area with benches and an asphalt pedestrian walkway, is separated from the track area by a three-foot-high wrought iron picket fence. West of the fence, an embankment slopes downward 40 to 60 feet, at an angle of about 45 degrees, to a seven and one-half foot stone retaining wall abutting the railroad bed, some 10 and one-half feet from the northbound track. Construction, primarily underground but involving the exposure of heavy equipment above ground, was taking place in the embankment area. Installation of a pipe system required removal of a portion of the wrought iron fence. Five-foot-high wooden barricades were supposed to be erected along the perimeter where the fence was removed. However, photographs in evidence show no such barricades. There was testimony that there had been a chain link fence atop the retaining wall which had disappeared by the date of the accident.
The infant plaintiff testified that on this particular occasion he and his friends had climbed over the wrought iron fence to play tag in the area. Other parts of his testimony indicate that he descended to the embankment through a passage where there was no fence, describing this passage as being “next to the flower pots”. As he ascended the embankment at the conclusion of the game, the child said
The evidence was sufficient to support a jury finding that the maintenance of inadequate fencing and barricades under these circumstances constituted negligence (Scurti v City of New York, supra).
The city’s right to indemnification against the contractors is explicitly set forth in their contract. Article 7 of the agreement between the city and the contractors provides that the latter are solely responsible for taking all precautions to protect anyone on or adjacent to the work site from injury resulting from operations under the contract, including “the duty to provide, place and adequately maintain at or about the site suitable and sufficient guards, lights, barricades and enclosures.” Should an injury result on or about the site due to the contractors’ negligence, carelessness or failure to comply with the contract or with law, the contractors “shall indemnify and hold the City harmless from any and all claims and judgments for damages and from costs and expenses to which the City may be subjected or which it may suffer or incur by reason thereof.” Such indemnification clauses are valid among parties to a construction contract (Vey v Port Auth. of N.Y. & N.J., 54 NY2d 221), even where, as here, substantial responsibility for the injury was found on the part of the municipal indemnitee (Kelly v M. C. Elec. Co., 68 AD2d 657).
Plaintiffs’ appeal on the issue of inadequacy of the verdict is based in part on an alleged mistake by one of the jurors. The verdict on liability against the city and the railroad was unanimous, and against the contractors 5 to 1, with juror number 5 dissenting. The award of damages for the infant plaintiff was by a 5 to 1 vote, with juror number 2 dissenting. On the question of apportionment of damages among the defendants, the jury was unanimous, 40% against the railroad, 50% against the city and 10% against the contractors. The jury was then held over pending further motions and interrogatories. During this period
Here, the supposedly confused juror was identified as the forelady, juror number 1. The nature of the alleged confusion is that juror number 1, because of the lateness of the hour and the pressures of deliberating all day, had given in and joined four other jurors on the supposed assumption that the $600,000 award was to be one of several payments rather than a lump-sum award. In the first place, this verdict cannot be challenged for error in reporting, inasmuch as the challenge is not supported by affidavits of all the jurors, nor even by an affidavit of the supposedly confused juror, but rather solely by an affidavit of juror number 2, the lone dissenter on the issue of damages. Second, this verdict cannot be set aside or a new trial ordered because of any confusion of substance in reaching the verdict. Juror number 2 was in favor of a greater award to the infant plaintiff, and she alleges that juror number 1 gave in to compromise with the majority only in the mistaken belief that the total award would be considerably more than $600,000. We have already indi
The judgment should be modified to grant judgment in favor of the city, on its proportion of liability, over against the contractors in indemnification. The order denying plaintiffs’ motion to set aside the jury verdict and direct a new trial on the issue of damages should be affirmed.
The judgment, Supreme Court, New York County (Crangle, J.), entered January 10, 1981, should be modified, on the law and in the exercise of discretion, without costs, to grant judgment over, in favor of defendant City of New York, against defendants Poirer & McLane Corporation and Raymond DiMenna Corporation, and otherwise affirmed. The order, Supreme Court, New York County (Crangle, J.), entered November 14, 1980, should be affirmed, without costs.
Asch, J. P., Bloom, Milonas and Alexander, JJ., concur.
Order, Supreme Court, New York County, entered on November 14, 1980, unanimously affirmed, without costs and without disbursements, and judgment of said court entered on January 10, 1981, unanimously modified, on