| Sneddon v CSX Transp. |
| 2007 NY Slip Op 10206 [46 AD3d 1345] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| Sandra A. Sneddon, as Administratrix of the Estate of JohnSneddon, Deceased, Appellant, v CSX Transportation, Respondent. (Appeal No.1.) |
—[*1] McNamee, Lochner, Titus & Williams, P.C., Albany (Scott A. Barbour of counsel), fordefendant-respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (Donald A. Greenwood,J.), entered December 5, 2006 in a wrongful death action. The judgment, upon a jury verdict infavor of plaintiff and against defendant, awarded plaintiff damages in the amount of $825,000.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously modified on the law by granting plaintiff's post-trial motion in part and setting asidethe award of damages for past loss of earnings and as modified the judgment is affirmed withoutcosts, and a new trial is granted on that element of damages only unless defendant, within 20days of service of a copy of the order of this Court with notice of entry, stipulates to increase theaward of damages for past loss of earnings to $150,000, in which event the judgment is modifiedaccordingly and as modified the judgment is affirmed without costs.
Memorandum: Plaintiff commenced this wrongful death action pursuant to the FederalEmployers' Liability Act ([FELA] 45 USC § 51 et seq.) after her husband(decedent) was killed by a train during the course of his employment at defendant's railway yard.She now appeals from a judgment entered upon a jury verdict finding defendant 75% at fault forthe accident and decedent 25% at fault and awarding plaintiff damages in the amount of$100,000 for past loss of earnings, $720,000 for future loss of earnings, $30,000 for past loss ofguidance for decedent's son, $130,000 for future loss of guidance for decedent's son, $20,000 forpast loss of services to plaintiff, and $100,000 for future loss of services to plaintiff.
Contrary to plaintiff's contention, Supreme Court properly submitted the issue ofcontributory negligence to the jury. "FELA is not a strict liability statute but, rather, liabilityunder the statute is based on negligence and is not based solely on the fact that an employee isinjured" (McCabe v CSX Transp.,Inc., 27 AD3d 1150, 1150 [2006]). Indeed, FELA expressly provides that "the fact thatthe employee may have been guilty of contributory negligence shall not bar a recovery, but thedamages shall be diminished by the jury in proportion to the amount of [*2]negligence attributable to such employee" (45 USC § 53)."The standard for determining contributory negligence in FELA actions is considerably moreliberal than at common law . . . Under FELA, a jury is entitled to find negligence ifa party's actions 'played any part, even the slightest, in producing the injury' " (Hotaling v CSX Transp., 5 AD3d964, 967 [2004], quoting Rogers v Missouri Pacific R. Co., 352 US 500, 506[1957]). A defendant "is entitled to a jury instruction on contributory negligence if there is anyevidence to support that theory" (Hose v Chicago Northwestern Transp. Co., 70 F3d 968,978 [1995]), and there was such evidence in this case. Defendant presented evidence thatdecedent disregarded its instructions to remain outside "the red zone," an area in which he couldbe struck by a passing train, and that decedent in fact was inside the red zone when he slippedand was struck by a passing train.
Contrary to the further contention of plaintiff, the court properly denied that part of herpost-trial motion seeking to set aside the jury verdict finding that decedent was 25% at fault asagainst the weight of the evidence. It cannot be said that "the preponderance of the evidence infavor of [plaintiff was] so great that the verdict could not have been reached upon any fairinterpretation of the evidence" (Dannick v County of Onondaga, 191 AD2d 963, 964[1993]). Here, there were no eyewitnesses to the accident, and the location of decedent's body didnot conclusively demonstrate where and how decedent slipped and fell into the path of the train."In passing on the issues of fault and causality, . . . the jury has a broad power toengage in inferences" (Richards v South Buffalo Ry. Co., 54 AD2d 310, 311 [1976]), andwe perceive no reason to disturb the jury's verdict with respect to decedent's contributorynegligence.
We agree with plaintiff, however, that the court erred in denying that part of her post-trialmotion seeking to set aside the award of damages for past loss of earnings inasmuch as the awarddeviates materially from what would be reasonable compensation (see CPLR 5501 [c]).Although the jury was not required to accept in its entirety the testimony of plaintiff's expert withrespect to loss of earnings (see Mechanick v Conradi, 139 AD2d 857, 859 [1988]), wenevertheless conclude that the evidence established that decedent would have received someincrease in income as the result of cost of living increases, as well as salary increases based onlongevity and promotion. We therefore modify the judgment accordingly, and we grant a newtrial on that element of damages only unless defendant, within 20 days of service of a copy of theorder of this Court with notice of entry, stipulates to increase the award of damages for past lossof earnings to $150,000, in which event the judgment is modified accordingly. Finally, we rejectthe contention of plaintiff that the court erred in denying that part of her post-trial motion seekingto set aside the award of damages for future loss of earnings (see CPLR 5501 [c]),particularly in view of the fact that, on cross-examination, plaintiff's expert conceded that hecould have more accurately determined decedent's future earnings by using the wages of otherworkers with similar seniority working at the same location as decedent, rather than using onlydecedent's position on the seniority roster without regard to location. Present—Scudder,P.J., Gorski, Centra, Fahey and Green, JJ.