Lucas v. New York City Transit Authority

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered October 11, 1988, which, upon a jury verdict in favor of plaintiff in the amount of $3 million, apportioning liability 80% to defendant and 20% to plaintiff, and upon denial of defendant’s motion to set aside the verdict, awarded plaintiff judgment in the amount of $2,607,248.10, modified, on the law and the facts, by vacating the apportionment of liability and substituting therefor a provision apportioning liability at 40% for defendant and 60% for plaintiff and the verdict is reduced accordingly; the judgment is otherwise affirmed, without costs. The jury’s verdict attributing 20% of the responsibility for the accident to plaintiff and 80% to defendant is contrary to the weight of the evidence. Based on the evidence introduced at trial, any failure on the part of defendant cannot be deemed to amount to more than 40% of the negligence, and we modify accordingly. At approximately 9:15 p.m. on May 8,1983, George Johnson, the motorman of a nine-car No. 3 train, began his approach into the 34th Street and 7th Avenue subway station when he saw plaintiff in the air above the tracks. Plaintiff landed feet first onto the tracks and in one continuous motion, turned to face the train, crouched down and then stretched out across the tracks. The motorman, who testified that the train was traveling at between 15 to 20 miles per hour, first observed plaintiff from 52 feet (one car length) away and immediately put the train into emergency by pulling back the emergency brake. Fifteen feet of the first car of the train passed over plaintiff before it came to a complete stop, severing his legs below the knee. [22] Plaintiffs medical experts testified that plaintiffs actions in jumping to the tracks were involuntary and the result of a postictal psychosis stemming from epilepsy. Defendant maintained that plaintiff was attempting suicide. Plaintiff also claimed that the motorman was negligent in failing to stop the train before contact. The jury found the motorman negligent in failing to bring the train to a stop before it made contact with plaintiff but also found that plaintiff was acting in a conscious, volitional manner when he jumped to the tracks. While apparently discrediting the opinions of plaintiffs medical experts, the jury nonetheless apportioned liability at 80% for defendant and 20% for plaintiff. The jury’s apportionment of liability, after finding that . plaintiffs actions in jumping to the track were voluntary, was against the weight of the evidence (see, Robinson v New York City Tr. Auth., 105 AD2d 614). We disagree, however, with the dissent’s conclusion that the finding that the motorman was negligent was also against the weight of the evidence. As the dissent points out, the parties’ experts disagreed as to the distance within which the motorman could have stopped the train. It is well settled, however, that "[t]he weight to be afforded the conflicting testimony of experts is a matter peculiarly within the province of the jury” (Sternemann v Langs, 93 AD2d 819; see also, Norfleet v New York City Tr. Auth., 124 AD2d 715, lv denied 69 NY2d 605; Chodos v Flanzer, 109 AD2d 771). Although the dissent attempts to discredit the expertise of plaintiffs safety and health consultant, his credentials as well as his opinions and calculations relied on in arriving at his conclusions were subjected to extensive cross-examination. By crediting his testimony that the motorman could have stopped the train before hitting plaintiff, the jury did not engage in speculation or conjecture (cf., Bernstein v City of New York, 69 NY2d 1020; Cassano v Hagstrom, 5 NY2d 643, rearg denied 6 NY2d 882). Instead, plaintiff demonstrated facts and conditions from which the negligence of defendant could be reasonably inferred (cf., Bernstein v City of New York, supra). Therefore, viewing the evidence in the light most favorable to plaintiff, we conclude that the jury verdict finding defendant negligent was in accordance with the weight of the evidence. (Supra.) In view of the extensive injuries suffered by plaintiff, the amount of damages awarded does not shock the conscience (see, Moran v City of New York, 153 AD2d 607; Neal v Rainbow House Fruits, 87 AD2d 511). We have considered defendant’s remaining contentions and [23] find them to be without merit. Concur—Carro, Rosenberger and Ellerin, JJ.