Carpino v. Baker

¶1I agree with the majority that the matter should be remanded for a new trial. I do not agree with the dissent that a finding of contributory negligence as a matter of law is justified. The issue of contributory negligence is a jury question in all but the clearest cases (MacDowall v Koehring Basic Constr. Equip., 49 NY2d 824). This is not one of the clearest cases (cf., Giambrone v Pan Amer. Airways, 74 AD2d 789). On the appeal from the judgment of the first trial (66 AD2d 201) we concluded that there were factual questions warranting submission to the jury of the issues of negligence and contributory negligence. As acknowledged by the dissent, the evidence at the second trial was substantially the same as presented at the first. Accordingly, our conclusion on this appeal should be the same as on the first. A finding of contributory negligence as a matter of law might be justified (1) if decedent were crossing the tracks unlawfully, that is, in violation of and not within any of the exceptions to the prohibition under section 83 of the Railroad Law (see Carlson v Long Is. R.R., 16 AD2d 937, affd 12 NY2d 984; see, also, Basso v Miller, 40 NY2d 233, 242; cf., Scurti v City of New York, 40 NY2d 433, 442), or (2) if “decedent 'made a dash’, 'ran’ toward the track when the train was about 35 feet away” (66 AD2d 201, 203), or (3) if he were "about at 'the edge of the track’, 'on the ties’ ” (66 AD2d 201, 203), intending to cross, but obviously did not have sufficient time to get across, or (4) if he were just standing on the tracks. The facts before us do not clearly fall into any of these categories. On this appeal we again find there were contradictions in the engineer’s recollection of the accident, bringing into question his version of the occurrence. In addition, there was testimony by plaintiff’s expert that the train was traveling at a greater speed than testified by the engineer and that the engineer did not apply his brakes prior to contact with decedent. Viewing the evidence most favorably to plaintiff (Wartels v County Asphalt, 29 NY2d 372, 380), one might conclude that decedent was crossing the tracks lawfully, and reasonably thought he had enough time to cross safely. In the circumstances, it is conceivable that but for the engineer’s negligence decedent would have succeeded in crossing the tracks. Thus a conclusion of contributory negligence as a matter of law is not warranted. Finally, in passing, I do agree with the dissent that Noseworthy v City of New York (298 NY 76) does not hold that where there is only one eyewitness to an accident involving a train and a decedent, the issue of decedent’s contributory negligence is always for the jury.