Alba v. Long Island Rail Road

Judgment, Supreme Court, New York County (Carmen Ciparick, J.), entered on or about January 27, 1993, after jury trial in an action for personal injury, finding for plaintiff and awarding him $2,000,000, after set-off of amount paid by settling co-defendants, plus interest and costs, reversed, on the law, and remanded for a new trial, without costs. Plaintiff was delusional and disoriented as the result of attending an intensive religious program at defendant St. Paul’s Center, when he lay across defendant Long Island Rail Road’s (LIRR) tracks in front of an eastbound train shortly after 1:00 p.m. on January 27, 1985. The resulting impact severed his legs. Later, plaintiff commenced this action against defendants LIRR and St. Paul’s Center, inter alia. At trial, the engineer testified that in accordance with his training, he did not stop the train immediately upon sighting plaintiff, but first sounded his horn and applied the brake moderately, and only upon observing plaintiff lie down on the tracks did he begin emergency braking procedures. At the close of plaintiff’s case, LIRR’s motion to dismiss, based upon the so-called "open run” [144] defense set out in the engineer’s testimony, was denied. Thereafter, LIRR requested that the jury be charged as to the "open run” defense. The request was denied. The jury returned a verdict of $4 million for plaintiff, with fault apportioned 70% to LIRR, 30% to the church defendants, and 0% to plaintiff. LIRR’s liability was $2 million, since the church had settled prior to verdict. LIRR filed this appeal, and plaintiff, a limited cross-appeal. It is the established rule in New York and the rest of the nation that when a train engineer sees a person on or near the track, he is not bound to stop his train immediately, but has the right to assume that in broad daylight, the person will see and hear the train, heed the danger, and leave the track (Chrystal v Troy & Boston R. R. Co., 105 NY 164, 170; Fierro v New York Cent. R. R. Co., 256 NY 446, 448-449). In such a situation, the engineer has no duty to make an emergency stop until he determines that the person cannot or will not remove himself from harm’s way (Fierro v New York Cent. R. R. Co., supra). This is the "open run” defense. The trial court’s refusal to instruct the jury in accordance with this long-settled rule of law prejudiced LIRR’s case by misinforming the jury as to LIRR’s responsibility in these circumstances, and constituted reversible error (O’Brien v Erie R. R. Co., 210 NY 96). We have considered the remaining issues raised on the appeal and cross-appeal and find them to be without merit. Concur—Sullivan, J. P., Rosenberger, Ross and Williams, JJ.