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ARTICLE ID 195837

$________ GROSS REDUCED BY 35% COMPARATIVE NEGLIGENCE – TRANSPORTATION NEGLIGENCE – TICKET BOOTH CLERK FAILS TO SUMMON AUTHORITIES WHEN HIGHLY INTOXICATED PATRON LIES DOWN UNDER TURNSTILE – DECEDENT IS WALKING BETWEEN CARS WHEN TRAIN JERKS VIOLENTLY AND DECEDENT FALLS FROM TRAIN AND IS RUN OVER.

Kings County, NY

The plaintiff contended that after the 56-year-old decedent was in the station for almost a half an hour at approximately 10:00 p.m., he attempted to purchase a ticket, but that the ticket clerk refused, due to severe intoxication. The plaintiff supported that the decedent then lay down under the turnstile for five to ten minutes, and although he was in full view of the token clerk, the clerk failed to summon the police. The plaintiff maintained that the decedent then crawled under the turnstile and boarded the No. 4 train south, at the Franklin Ave. station, which is one express stop before Utica Ave. – the final stop before the train turns around to head north. The plaintiff contended that the decedent, who fell asleep, should have been awoken and ejected from the train. The plaintiff maintained that during the process of turning around, the train crosses several switches and that the when it does so, the train can jerk violently. The plaintiff maintained that the decedent awoke after the final stop, and before it completed turning around and that as he was walking to find assistance – the train went over a switch as he was between two cars. The plaintiff opined that because of the jostling, the decedent fell and was run over by the train.

The plaintiff contended that the ticket clerk should have summoned the authorities when the decedent lay down under the turnstile after the clerk refused to sell the ticket to the highly intoxicated decedent. The ticket booth clerk maintained that the decent was only under the turnstile for approximately one minute, and that he did not have an opportunity to call the police. The ticket booth clerk had advised the investigating officer that the decedent had only been present under the turnstile for approximately one minute. The plaintiff argued that in addition to this inconsistency, the jury should consider that the defendant indicated that it could not locate the report that was filled out by the ticket clerk. The court declined to give a missing documents charge. The plaintiff’s expert traffic engineer maintained that the defendant should have asked anyone who remained on the train at Utica Ave to leave, but that the defendant’s workers failed to awake the decedent, and another passenger. The defendant maintained that the cause of the incident was clearly the intoxication of the decedent.

The decedent fell from the area between the car as it traveled over a switch, and his arm and leg were severed. The decedent’s body was later found in the proximity of a switch, and the plaintiff maintained that this evidence strongly supported the plaintiff’s position that the extensive movement that occurred as the train traveled over the switch, causing the decedent to fall.

The plaintiff’s forensic pathologist testified that the decedent would probably have been conscious for approximately five minutes before bleeding out, and the plaintiff maintained that the conscious pain and suffering was clearly extensive, irrespective of the intoxication. The decedent was a postal worker earning approximately $________ per year. He left a widow and 15-year old stepdaughter. The decedent also left two adult daughters from a prior marriage, and contended that because of difficulties in their lives, the adult daughters derived extensive guidance and advice from the decedent.The jury found the defendant 65% negligent, the decedent 35% comparatively negligent, rendering a gross award of $________.

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