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Bronx County, NY

In this action, the 51-year-old plaintiff contended that the defendant’s train operator negligently failed to make adequate observations and activate the emergency brake when he had fallen onto the tracks some ________ feet from the point the train entered the station. The plaintiff contended that as a result, he was run over by the train that came to rest as he was under the third car. The plaintiff contended that he suffered the amputation of the middle three fingers of the right, dominant hand, and severe bilateral crush injuries to the legs, ultimately necessitating the above-the-knee amputation of the left leg and the below-the-knee amputation of the right leg.

The evidence disclosed that as the plaintiff was leaning over to get a view of whether the train was approaching, he fell onto the railroad bed. The train operator testified that the train was traveling at 13 mph. The plaintiff’s reaction time/visual acuity expert calculated that if paying adequate attention, the train operator would have been able to stop in time to avoid striking the plaintiff. The evidence also revealed that a prior individual had jumped onto the tracks 27 days earlier as this defendant was operating the train, and the plaintiff contended that although the operator was not at fault for the prior incident in which the patron was struck, the recent experience should have reduced the train operator’s reaction time and that such "violation of expectation" should have better enabled her to stop in time.

The defendant train operator denied that the plaintiff was sprawled across the tracks as she entered the station. The defendant maintained that she observed what reasonably appeared to be debris to the side of the tracks, and that it would not be prudent to activate the emergency brakes. The defendant’s forensic pathologist testified that it was highly doubtful that the plaintiff was positioned across the tracks when he was struck and that had he been so position, his injuries would have been much worse and likely fatal. The defendant further contended that that it would have been impossible for plaintiff to have been stretched across the tracks when he was struck, as his injuries from contact by the undercarriage of the train cars would have been fatal, and would have included injuries to his torso.

The plaintiff countered through the presentation of a retired NYCTA road car inspector who was present at the scene and who testified that he went under the train and saw plaintiff lying at an angle, between the two rails, with his feet closer to the platform side, and his head closer to the far rail. The plaintiff further maintained that blood was found on either side of the train and contended that this aspect lent further significant support for the plaintiff’s position.

The plaintiff further presented the first responding police officers, including a police officer, a sergeant, and a detective, all of whom interviewed the train operator independently within one hour of the accident. The officers related that the train operator denied that she saw an object as she was entering the station, and the plaintiff contended that in view of the inconsistency between this evidence and the train operator’s trial testimony that she observed an unknown object on the side of the tracks as she entered the station, the defendant’s position should be rejected.

The plaintiff further introduced evidence of the radio transmissions between the train operator and the T/A. The transmission reflected that the operator was not aware that the plaintiff had been struck by the train. The plaintiff argued that the train operator’s denial that her train made contact with the customer, even though she knew he was situated under the third car, was evidence that she was not being truthful and was living in a state of denial about how her conduct had caused such horrific injuries to another person.

The defendant maintained that it was clear that by leaning over the edge of the platform and falling onto the tracks, the plaintiff was comparatively negligent. The plaintiff did not dispute that he bore some responsibility to the happening of the accident.

The plaintiff required the amputation of the three middle fingers of the right dominant hand at the base. The plaintiff related that he has learned to use his pinkie and thumb as pincers and that although he has extensive difficulties with everyday tasks, his attempts to minimize the impact has been somewhat successful. The plaintiff also required the above-the-knee amputation of the left leg and the below-the-knee amputation of the right leg. The plaintiff introduced an eight minute day-in-the-life video that depicted his putting on his prostheses in the morning and taking them off at night.

The plaintiff made no income claims.

The jury found the defendant 60% negligent, the plaintiff 40% comparatively negligent and rendered a gross award of $________.

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