Summary
In Coleman (supra, p 144) the Court of Appeals explained that the "evidence of alcoholic breath and the three drinks is not in itself proof of intoxication".
Summary of this case from Ellison v. New York City Transit AuthorityOpinion
Argued March 21, 1975
Decided June 9, 1975
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, ABRAHAM J. GELLINOFF, J.
Stuart Riedel, John G. de Roos, Helen R. Cassidy and John A. Murray for appellant.
Benjamin H. Siff, Ivan Tantleff, Thomas R. Newman and Charles Kramer for respondent.
Plaintiff, aged 20 and claiming to have been mugged and thrown upon the subway tracks at the Canal Street station, suffered amputation of both legs below the knees while lying upon the tracks and when struck by defendant's train.
First, there was a trial on the issue of liability only, resulting in a verdict in favor of plaintiff. The interlocutory judgment entered thereon was affirmed by the Appellate Division, one Justice dissenting. Then followed a separate trial on the issue of damages in which a verdict of $1,800,000 was rendered. Defendant now appeals from an order of the Appellate Division which unanimously reversed, on the law and the facts, the Supreme Court judgment entered May 29, 1973, in favor of plaintiff, and granted a new trial on the issue of damages, unless plaintiff stipulated to reduce the verdict to $930,000 and to entry of an amended judgment accordingly, in which event, the judgment as amended and reduced, was to be affirmed. Plaintiff so stipulated.
Where a motorman of a subway train sees a person lying on the tracks abutting a subway station platform, from such a distance and under such other circumstances as to permit him, in the exercise of reasonable care, to stop before striking the person, the motorman's failure to avoid the accident may be found to be negligence (Noseworthy v City of New York, 298 N.Y. 76, 78-79; Clarke v City of New York, 295 N.Y. 861; Brennan v City of New York, 277 App. Div. 854; Mikorski v City of New York, 270 App. Div. 769, mot for lv to app den 270 App. Div. 819). With this general rule in mind and aside from testimony as to the actual occurrence of the tragedy, considerable proof was submitted as to the locale of the accident, sight distances and stopping capabilities of subway trains.
The platform in question, at the Canal Street subway station of the IND Division, was used by downtown travelers and ran in a generally northerly and southerly direction for a length of 660 feet. Adjacent to it and to the west were the southbound local tracks. As a train proceeding south comes into the Canal Street station, at a point 44 feet south of the north end of the station, it approaches a transition or easement curve, based on a 1,000 foot radius, it being described as a slight curve to the left. While Joseph Sigreti, defendant's motorman, was operating a four-car train from the right side of the lead car along these southbound local rails, plaintiff was run over by the first half of the front vehicle and was removed from underneath that car, at a point 320 feet south from the north end of the station.
During the liability trial, evidence was adduced relevant to the crucial question as to whether Sigreti, who admittedly saw plaintiff lying across the tracks, in the exercise of reasonable care, should have halted the train before impact. On the one hand, there was submitted testimony of: the plaintiff that he was unable to get up but saw the train at the beginning of the station about 300 to 400 feet distant; Marshall, a Transit Authority engineer familiar with the station, that upon entering the station from the north one could see clearly 320 feet to the point where plaintiff was extricated from beneath the train; Doty, a former motorman for defendant and a paid expert called by plaintiff, that a motorman entering the station could see approximately 500 feet of the tracks ahead; and Patrolman Lilley of the Transit Police Department, who came to the scene minutes after the accident, that the lighting conditions of the platform and tracks on the downtown side of the station were good and that a person could see from one end of the platform to the other. While Sigreti had testified that his train had dynamic brakes and that he had entered the station at 30 miles per hour, Doty stated that in his opinion a four-car train equipped with such brakes and traveling at that speed could be stopped in "approximately 100, 135 to 150 feet", if the emergency brakes were immediately applied. On the other hand, McCafferty, a trainmaster and former motorman instructor employed by defendant, opined that such a train could be stopped in an emergency in 294 feet, including the 44 feet traveled during reaction time. A car is 60 feet long. Sigreti testified that, upon entrance into the station, one is able to first see the full length of the station when between a car and a half to two car lengths into the station, at which approximate point he first noticed plaintiff's body on the tracks. He also related that in making his normal Canal Street stop he would have proceeded between 120 and 180 feet further south beyond plaintiff's extended form. However, on an examination before trial, Sigreti testified that "[a]s I entered the station I [saw this] person lying right across the ____" and that, at that time, said person was "around 300 feet" from the front of the train. On the day of the occurrence, the motorman filed a report reading in part: "Out of 168th Street. Entering Canal Street station. Noticed male laying across tracks"; and, when interviewed one week later, told a detective that "as he approached the station, he saw Mr. Coleman lying across the tracks".
Appellant ascribes various reasons for reversal, chiefly the following instruction to the liability jury, to which exception was taken: "Now, in this case the plaintiff is an interested witness because he seeks to recover. The witnesses, all employees, including Sigreti, even though he's no longer in the employ of the Transit Authority, is an interested witness because he's charged with the negligence. Therefore, he's an interested witness when he comes in and denies his conduct and his act. The expert of the Transit Authority is an interested witness because he works for the Transit Authority." Under the common law, a person was incompetent to testify, if interested in the event, on the supposed ground that he or she was unworthy of belief (2 Wigmore, Evidence [3d ed], § 576; 5 Weinstein-Korn-Miller, N Y Civ Prac, par 4512.02) but, for the most part and under statute, interest as a disqualification has been abolished (CPLR 4512; but see CPLR 4502, 4519). This abolition left untouched the relevancy of all facts which bear on the probable partiality of the witness by reason of his interest in the event of the suit (3A Wigmore, Evidence [Chadbourn rev, 1970], § 966), such an interest in a cause being a circumstance available for impeachment (King v New York City Hudson Riv. R.R. Co., 72 N.Y. 607, 611; Registered Country Home Bldrs. v Lanchantin, 10 A.D.2d 721; Christensen v Pittston Stevedoring Corp., 283 App. Div. 1088).
The scope of the circumstances of interest that may be employed to discredit witnesses has not been definitely circumscribed, but it is clear that it is not confined to financial bases alone (Noble v Marx, 298 N.Y. 106, 111, Wohlfahrt v Beckert, 92 N.Y. 490, 496; Hoes v Third Ave. R.R. Co., 5 App. Div. 151, 155; 3 Bender's New York Evidence, § 147.05, subd [2]; 3A Wigmore, Evidence [Chadbourn rev, 1970], § 966). It is firmly established, for example, that an actor in the transaction at issue, having a motive to shield himself from blame, would be an interested witness, even though not a party to the action (Lee v City Brewing Corp., 279 N.Y. 380, 384; Gaffney v New York Cons. R.R. Co., 220 N.Y. 34, 37; Volkmar v Manhattan Ry. Co., 134 N.Y. 418, 422). Thus, Sigreti, who was the only witness who testified directly as to the point from which he first saw plaintiff lying on the tracks, was an interested witness.
The mere employer-employee relationship existing between a party and a witness, either at the time of the incident in suit or at the time of trial, does not make the employee an interested witness, although it may give rise to bias (Noseworthy v City of New York, 298 N.Y. 76, 79, supra; Della Croce v City of New York, 3 A.D.2d 920; Hoffman v Florida East Coast Hotel Co., 187 App. Div. 146, 151). The bias of a witness in favor of the party calling him may be shown by evidence of family, business or close social relationships to affect his credibility (People v Brown, 26 N.Y.2d 88, 94-95; Keet v Murrin, 260 N.Y. 586; People v Webster, 139 N.Y. 73, 85), and it is for the same purpose that it is competent to show the interest of a witness in the case. Although distinct, bias and interest of witnesses are closely related as methods of impeachment (see Ryan v Dwyer, 33 A.D.2d 878; N Y PJI [2d ed] 1:92; Richardson, Evidence [Prince — 10th ed], §§ 493, 503).
Defendant contends that, with the exception of motorman Sigreti, it was error to charge in effect that all employees were interested. Other than Sigreti and McCafferty, the testimony of the employees dealt, for the most part, with undisputed matters such as dimensions of the platform, visibility, point of impact, observations as to plaintiff's physical condition and statements made by Sigreti. Although the court characterized McCafferty as interested and Doty as not interested, to which latter portion exception was not taken, each testified that the stopping distance of a train proceeding at 30 miles per hour was under 300 feet. Although they differed as to the stopping distance, there were various items of proof indicating that the motorman had seen plaintiff when more than 300 feet distant — contrary to Sigreti's at-trial testimony.
The Appellate Division determination that the charge, indicating that employees of the defendant were interested witnesses, was not reversible error, in view of the nature of their testimony, is consistent with precedent. In Jobman v Hogan Sons ( 216 App. Div. 736, affd 243 N.Y. 581), we affirmed, without opinion, an order of the Appellate Division which affirmed a judgment for plaintiff, where the trial court charged that employees of defendant not connected with the accident were interested witnesses and where exception was taken. The authorities cited by defendant and in one dissent are clearly distinguishable in that they also involve other errors. In Della Croce v City of New York ( 3 A.D.2d 920, supra), the verdict was excessive or against the weight of the evidence, there was lack of proof, and the jury was not apprised of the applicable principles attendant the doctrine of res ipsa loquitur so as to appreciate the importance of determining the credibility of the bus operator. In Noseworthy v City of New York ( 298 N.Y. 76, 81, supra), a death case, the court refused a proper request for a charge as to the degree of proof to which plaintiff was held and there "were other incidents and rulings at this trial of which plaintiff rightfully complains." In Hoffman v Florida East Coast Hotel Co. ( 187 App. Div. 146, 152, supra), three errors in respect to the charge were pointed out, with a statement that it should not be assumed that the court approved all other rulings made on trial.
Defendant urges that plaintiff was guilty of contributory negligence, that the jury could have inferred that he fell to the tracks as a result of his intoxication, rather than being thrown there by muggers, and that the trial court, in responding to a juror's question, removed the issue of contributory negligence from the jury's consideration. The jury was charged: "in order for the plaintiff to recover in this action he must also establish an additional factor, that is his own freedom from any contributory negligence. In other words, plaintiff also had an obligation to exercise that degree of care for his own safety which an ordinarily prudent person would have exercised under the same circumstances. * * * If the plaintiff failed for whatever reason to exercise that degree of care which a reasonably prudent person would have exercised under the same circumstances, then he would have been guilty of contributory negligence and could not recover." These instructions, plus their repetition in substance upon the jury's return for advice, placed contributory negligence before the jury. In response to a juror's inquiry: "On drunkenness, just when is drunkenness considered negligence? One drink, two drinks, three drinks?", the court responded: "There is no such test. Unless you think he was drunk and there's proof that he was drunk you may not find him drunk. The only evidence in this case is he had three drinks, and Alcindor says he couldn't say he was drunk, and nobody else in the case says he was drunk. That's the only evidence in the case." Although the accident occurred in the early morning, plaintiff left his place of employment at 3:05 A.M., went to a bar looking for friends but had nothing to drink, went to another bar where he had two drinks of scotch and then returned to the first bar where he consumed another. He testified he was not drunk and no one testified he was. Lieutenant Alcindor, employed by the Transit Authority, in helping remove plaintiff from the tracks and in coming face to face with him, smelled alcohol but stated he was not prepared to say that plaintiff was drunk. The three drinks and Alcindor's observations were mentioned in the factual summary of the charge. The evidence of alcoholic breath and the three drinks is not in itself proof of intoxication and the court did not err in telling the jury that whether plaintiff had one, two or three drinks was not a test for intoxication (cf. Eisenberg v Green, 33 A.D.2d 756; Burnell v La Fountain, 6 A.D.2d 586; see Pellaton v Franzese, 45 A.D.2d 761).
Defendant contends that it was deprived of a fair trial when the court, upon being asked for an "indication as to taxability of the award to the plaintiff", instructed the jury: "Don't concern yourselves with that. It forms no part of your deliberations. It is not an element to be concerned by you. Do not consider that at all." One dissenter suggests that "[a]ll that would be required is an instruction that any award made to the plaintiff as damages is not subject to Federal and State income taxes, and the jury should not consider such taxes in fixing the amount of any award made to the plaintiff."
Although there is division on the question, the great weight of decisional authority in this country, in respect to a case such as this, is to the effect that the Judge was not required to charge the jury that any award to the plaintiff would be free of income tax (e.g., Blake v Delaware Hudson Ry. Co., 484 F.2d 204, 207; Matter of Marina Mercante Nicaraguense, S.A., 364 F.2d 118, 125-126, cert den 385 U.S. 1005; McWeeney v New York, New Haven Hartford R.R. Co., 282 F.2d 34, 35-39, cert den 364 U.S. 870; Stokes v United States, 144 F.2d 82, 87; Towli v Ford Motor Co., 30 A.D.2d 319; D'Amico v Resnik, 22 Misc.2d 545, 548 [SCILEPPI, J.]; see 13 N.Y. Jur, Damages, § 79; Encyclopedia New York Law, Damages [1975 Supp], §§ 1031, 1142; 63 ALR2d 1393, 1398, § 4).
The order of the Appellate Division should be affirmed, with costs.
A reversal and new trial is required here solely upon the ground that the trial court's instructions to the jury with regard to the interest of witnesses and the issue of intoxication as contributory negligence were erroneous.
In this negligence action, the plaintiff sought to recover damages for severe physical injuries he sustained when he was struck by a New York City Transit Authority subway train while he was lying on the tracks at a station in the early morning hours on a holiday weekend. The plaintiff claimed that he had been assaulted and thrown onto the tracks while waiting for the train and that he was unable to extricate himself before the train approached. He alleged that the motorman failed to have the train under reasonable and proper control and failed to maintain a proper lookout, and that he had not been negligent, he could have brought the train to a halt before striking the plaintiff.
The first error concerns the court's instruction as to interested witnesses. The Authority called as witnesses several of its past and present employees. These included the motorman, who was no longer an employee when the case was tried, a motorman instructor, a police officer and an engineer, all of whom were still employed by the Authority. To prove that the motorman had exercised due care, it was crucial that the Authority, among other things, establish the precise point along the length of the platform where the plaintiff had fallen, the point from which an object or a person on the tracks could be first seen by a motorman in an approaching train as it came out of a curve and into the station, and the emergency stopping distance from that point at normal speeds. The testimony given by plaintiff's paid expert, himself a former motorman, and by the Authority's employee-witnesses did not agree in all substantial aspects. Hence, these matters formed the crux of the jury's fact-finding assignment.
Against this background, the court's erroneous instruction as to interest of witnesses significantly increased the likelihood that the Authority's version of the facts and circumstances presented in this unfortunate accident would be discredited by the jury. The court charged on the interest of witnesses as follows: "Now, in this case the plaintiff is an interested witness because he seeks to recover. The witnesses, all employees, including Sigreti [the motorman], even though he's no longer in the employ of the Transit Authority, is an interested witness because he's charged with negligence. Therefore, he's an interested witness when he comes in and denies his conduct and his act. The expert of the Transit Authority is an interested witness because he works for the Transit Authority. Mr. Doty [plaintiff's expert] is an expert and is a disinterested witness." (Emphasis added.) There can be little doubt that the jury would interpret this instruction as requiring that they view all of the Authority's employees as interested witnesses.
Certainly, the motorman, Sigreti, as an actor in the transaction out of which the cause of action arose, but he alone among the Authority's employees, was an interested witness because of his motive to shield himself from blame. (O'Flaherty v Nassau Elec. R.R. Co., 34 App. Div. 74, 77, affd 165 N.Y. 624 ; Volkmar v Manhattan Ry. Co., 134 N.Y. 418, 422.) However, the mere existence of an employer-employee relationship between the Authority and the other witnesses does not, as a matter of law, make these employees interested witnesses. (Hoffman v Florida East Coast Hotel Co., 187 App. Div. 146, 151; Della Croce v City of New York, 3 A.D.2d 920; see Noseworthy v City of New York, 298 N.Y. 76, 79.) That is not to say that the jury is to disregard the existence of such an employer-employee relationship. It would have been proper for the trial court to allow the jury to determine whether this relationship biased or influenced these employees who testified on behalf of the Authority. (Hoffman v Florida East Coast Hotel Co., 187 App. Div. 146, 151, supra; see N Y PJI [2d ed] 1:92.) Even the majority at the Appellate Division acknowledges the general rule that the question whether the relationship gives rise to bias is for the jury, but states incorrectly, as can be seen from the instruction quoted above, that the court did not charge that all employees of the Authority were interested witnesses. The fact that the court stated, as part of the same instruction, that plaintiff's retained expert was disinterested, only makes the error more pronounced.
In addition to incorrectly instructing the jury with regard to the interest of witnesses, the trial court also improperly charged the jury, in its supplemental instruction, on the issue of intoxication as contributory negligence. The plaintiff had originally grounded his case alternatively on a "last clear chance" theory. However, that cause of action, and also a third cause of action based on alleged inadequate police supervision of the subway station, were dismissed upon the Authority's motion. Therefore, as it went to the jury, the case involved only the Authority's alleged negligence. Accordingly, the plaintiff, to establish his cause of action, was required to prove his freedom from contributory negligence. The Authority did not accept the plaintiff's claim that he had been assaulted and thrown onto the tracks; rather, it sought to establish that the plaintiff had been intoxicated and for that reason alone fell off the station platform, and that this constituted sufficient contributory negligence to defeat his cause of action.
On appeal, the plaintiff did not challenge the dismissal of those causes of action.
In its initial charge, the court did instruct the jury as to contributory negligence, albeit in summary form. However, the court later committed serious error when it improperly restricted the proof that the jury could consider as to the plaintiff's intoxication and contributory negligence. After deliberating for nearly three hours, the jury, obviously troubled by the intoxication question, returned to the courtroom for additional instructions. Four specific questions on this crucial issue were asked by the jurors. In response to the last of the four questions, the court said: "Unless you think he was drunk and there's proof that he was drunk you may not find him drunk. The only evidence in this case is [that] he had three drinks, and [Patrolman] Alcindor says he couldn't say he was drunk, and nobody else in the case says he was drunk. That's the only evidence in this case." (Emphasis supplied.) Seven minutes later, the jury returned its verdict, 10-2, in favor of plaintiff. As a result of this supplemental instruction, the jury was not permitted, even if it had been so inclined, to find, from the total proof presented, that plaintiff had been intoxicated and contributorily negligent at the time of the accident. Certainly, there was sufficient evidence from which the jury could infer, if it so chose, that the plaintiff had been intoxicated. For some considerable time preceding the accident, plaintiff was drinking. He visited at least three bars, remaining in the last one for an hour after the mandated 4:00 A.M. closing hour. During this extended period, he was drinking and consumed, by his own admission, at least three drinks of hard liquor. He also claimed to have entered the subway station through an entrance which was locked at the time of the accident. On these undisputed facts, it was reasonable to find, and the jury was entitled to find, that the plaintiff fell to the tracks as a result of intoxication even though there was no direct testimony offered that "he was drunk", as would have been required under the court's supplemental instruction. In limiting the jury to consider only the admission of the plaintiff that he had three drinks on the question of intoxication and contributory negligence, the court, in this close case, improperly restricted the proof that could be considered by the jury on this crucial question.
The record also discloses that the trial jury at the separate trial to determine the amount of damages asked the court for additional instructions "as to taxability of the award to the plaintiff." Rather than answering the question directly, the court responded: "Don't concern yourselves with that. It forms no part of your deliberations. It is not an element to be concerned by you. Do not consider that at all." The Authority took an exception to that response.
Whether a jury should be apprised that awards made in personal injury actions are not taxable under the Federal and State income tax laws is a question that I believe merits comment. The courts, both State and Federal, which have considered the question, have answered it in different ways. Although it appears that most of the State and Federal jurisdictions adhere to the rule that it is error to inform the jury that a personal injury award will not be taxable, a majority of the commentators seem to favor an appropriately worded charge.
For compilations of the pertinent cases, see Ann., 63 ALR2d 1393; Nordstrom, Income Taxes and Personal Injury Awards, 19 Ohio St LJ 212, 213, n 3.
2 Harper James, Law of Torts, § 25.12, pp 1327-1328; Burns, A Compensation Award for Personal Injury or Wrongful Death is Tax-Exempt: Should We Tell the Jury?, 14 De Paul L Rev 320; Feldman, Personal Injury Awards: Should Tax-Exempt Status Be Ignored?, 7 Ariz. L Rev 272; Nordstrom, Income Taxes and Personal Injury Awards, 19 Ohio St LJ 212, n 2; Comment, Personal Injury Awards and the Nonexistent Income Tax — What is a Proper Jury Charge?, 26 Fordham L Rev 98; 44 Ky LJ 384; Note, Consideration of Tax Aspects in Awarding Damages for Personal Injuries, 9 Vand L Rev 543; 50 Ky LJ 601; 4 UCLA L Rev 636; 25 Cin U L Rev 385; 11 Wn. Lee L Rev 66; 42 Ga LJ 149; 32 Tex L Rev 108; Opposing Instruction: Comment, Propriety of Comment on Non-Taxability of Personal Injury Verdicts, 21 U Chi L Rev 156; 35 NC L Rev 401; 42 Iowa L Rev 134; 8 Ark L Rev 174; 33 Boston U L Rev 114.
While it may be said that present day jurors have displayed much sophistication by carrying out their responsibilities as triers of the facts, it does not follow that the average citizen and juror is generally aware that personal injury awards are specifically exempt from taxation. More likely, it is reasonable to assume that the average juror would believe such an award is subject to income taxes. Perhaps this erroneous belief results from the widespread attention given by the media to the sums of money, often of windfall proportions, that are won in the New York State lotteries and various contests conducted on television. An empirical survey would no doubt show that the vast majority of our citizens would expect such windfalls to be taxed. This may be no more than an outgrowth of the modern fact of life that all governments are endlessly undergoing one fiscal crisis after another, or so it seems, and that as a result, the taxing authorities will of necessity permit very little, if anything, to escape taxation. Hence, the pervasive import of taxation — Federal, State and local — in the lives of our citizens, and the public's awareness of it, cannot be seriously disputed. Against that background, I believe the average citizen would expect that an award made in a personal injury case would be subject to income taxation, particularly where at least a portion of that award represents compensation for the loss of past and future income.
Since it is an elementary rule of damages that the purpose of personal injury compensation is neither to reward the plaintiff nor to punish the defendant, but solely to replace plaintiff's losses, I believe a rule in personal injury actions requiring the Trial Judge to instruct the jury that any award made by them will not be subject to Federal or State income taxes would dispel any misconception in the minds of the jury that the award is subject to income taxes. Only when a jury is specifically instructed that the award will not be taxed can we be certain that it will not speculate that the award is subject to income taxes and increase the award significantly to compensate for such tax loss. It should also be said that the instruction would not require the introduction of any additional evidence or open the trial to matters irrelevant to traditional issues in personal injury litigation. All that would be required is an instruction that any award made to the plaintiff as damages is not subject to Federal and State income taxes, and the jury should not consider such taxes in fixing the amount of any award made to the plaintiff. In other words, a jury should be told that when it arrives at an amount of damages under the court's charge, it is not to add any sum of money to that amount for Federal and State income taxes.
I recognize that my approach to this problem represents a new view in our court and, therefore, I would not hold that the failure of the Trial Judge to answer the question asked by the jurors, as to the taxability of the award, was error.
I agree entirely with the dissenting opinion by Judge JASEN, except so much of the latter part which would permit or require instruction in personal injury cases to juries on the income tax consequences of awards in favor of successful plaintiffs. The problem is a complicated one and not simply resolved. Apart from the intricacy of the tax laws, I do not see how or why the tax problem should be separated from those of the different varieties of insurance, including Medicare and Medicaid, and not least of all, by any means, lawyer fees and costs of investigation and experts. I understand the temptation to treat with the problem but do not believe the time has arrived for its solution or that an acceptable solution has been presented.
Accordingly, I dissent and vote to reverse and grant a new trial for the reasons stated by Judge JASEN in assigning as errors the jury instructions on interested witnesses, and plaintiff's contributory negligence and likely intoxication.
Judges GABRIELLI, JONES, WACHTLER and FUCHSBERG concur with Judge COOKE; Judge JASEN dissents and votes to reverse in a separate opinion in which Chief Judge BREITEL concurs in part in another opinion.
Order affirmed.