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March 29, 1955

Larry KLEPAL, as Administrator of the goods, chattels and credits of Larry Klepal, Deceased, Plaintiff,

The opinion of the court was delivered by: WEINFELD

The plaintiff-administrator brings this action to recover the pecuniary damages caused to the decedent's dependents by reason of his alleged wrongful death.

The decedent was last seen alive shortly after midnight on September 23, 1951 when he left a tavern in New York City where he had been drinking beer for several hours with a companion to whom he announced he was on his way to Astoria, Long Island City. His movements thereafter are unknown. However, at about 7:45 a.m. that morning, the crushed and dismembered parts of his body were discovered alongside and between the rails of No. 1 track at the Sunnyside yards of the defendant located at Astoria.

 After the defendant's trains end their scheduled runs into the Pennsylvania Railroad Station at Manhattan, New York City, they proceed, via tunnels underneath the East River, into the Sunnyside yards which extend over a two mile area. We are here concerned mainly with the No. 1 tunnel and track which carried only eastbound traffic on the day in question.

 As the trains leave the tunnel speed is decreased to between 15 to 20 miles per hour and they proceed on a straightaway, slightly upgrade, for a distance of about 1,500 feet to the F tower where an area known as the loop begins. The view from the exit of the tunnel to this point is clear and unobstructed. The loop extends a distance of 10,000 to 15,000 feet beyond the F tower to a point where the engine is detached from the cars. There the engine is taken to a roundhouse for inspection. The cars are also inspected and then routed to an area for washing.

 To the right of the exit of No. 1 tunnel -- that is, to the south -- and running parallel to the outer or right rail of the tracks -- but separated therefrom by approximately 6 feet, is an abutment or retaining wall that gradually tapers off to the level of the roadbed at a point 900 feet east of the exit. It was near the end of this abutment that the decedent's head, torso and hands were found scattered about. The entire Sunnyside yard is enclosed by a steel fence 6 feet high, which on the side nearest to the No. 1 track and abutment, is about 50 to 60 feet to the south of, and runs parallel to, said track and abutment.

 About 800 feet westerly from where the deceased was found is a gate used as an entrance by employees working on the car washing machinery. This gate is closed from 11:00 p.m. to 7:00 a.m. but is open and unattended from 7:00 a.m. From the gate to the area where decedent's body was found the ground is level and is substantially free of obstacles. The gate entrance is 400 feet from where decedent had been employed. There is another gate on the opposite or north side at F tower, but to reach the No. 1 track one must use a stairway, down to track level, and then cross nine tracks.

 For at least four hours prior to 7:00 a.m. when decedent's body was discovered, the only trains using the No. 1 tunnel and track were those operated on behalf of the defendant. From 6:40 a.m. to 7:16 a.m. four trains exited from the tunnel and passed the area where the parts of decedent's body were found. F tower was passed at 6:40 a.m. by train No. 102; at 6:45 a.m. by train No. 108; at 7:03 a.m. by train No. 66; and at 7:16 a.m. by train No. 86. Engineer Norton was in charge of the latter train, which was the last over the tracks before decedent's body was found.

 The engineer and firemen of the first three trains unequivocally stated they neither saw nor observed a body or any other object upon, at or near the area of the tracks where decedent's remains were found. The next train over the tracks was Norton's. He did not directly complete his run to the end of the loop but stopped his train about 1/4 mile beyond where decedent's remains were found to telephone the observation tower. It was this telephonic report which led to the investigation.

 There is contention as to whether Norton reported that he saw what appeared to be a human body on track No. 1 when he came out of the tunnel or reported 'there was something on the track which I didn't know what it was which should be investigated'.

 Whatever the precise report, defendant's employees investigated and soon made the gruesome discovery. Members of the decedent's body were strewn alongside of and on the No. 1 track between 750 and 900 feet easterly from the exit of the No. 1 tunnel. One hand, severed at the wrist, was between the two running rails of the track; the other hand, also severed at the wrist, was between the south running rail and the retaining wall; the torso was against the retaining wall 6 feet from the right rail, and the decapitated head was caught between the guard rail and the running rail. The hands were about 750 feet and the torso about 900 feet east of the tunnel exit with the head about 10 feet easterly from the torso.

 That the decedent was struck by a railroad train admits of no doubt. Indeed, as much is conceded by the defendant, but it urges it 'is impossible to state how or when decedent came to be struck'. The plaintiff contends it was train 86 that struck and killed decedent. To succeed, he must establish this and also that the contract was due to Norton's negligence. Plaintiff, of necessity, was compelled to call various employees of the defendant as witnesses, including Norton, the engineer of train 86. Their pre-trial depositions were offered to establish a prima facie case and following the denial of the defendant's motion to dismiss for failure of proof, the defendant in going forward called a number of witnesses, also including Norton.

 The case is governed in its substantive aspects, including the sufficiency of the evidence, by New York law. *fn1" In a death action a plaintiff is not held to as high a degree of proof of the cause of the accident as where the injured person can himself describe the occurrence. *fn2"

 The essential elements of his claim, as to which he has the burden of proof, may be established by circumstantial as well as direct evidence. Circumstantial evidence is on no different or lower plane than other forms of evidence. *fn3" A plaintiff is not required to establish the specific cause of the accident or to eliminate every remote possibility that it might have been due to some cause other than the defendant's negligence. 'It is enough that he shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred.' *fn4"

 Just as there can be no doubt that decedent was struck by a railroad train, so there can be no question that he was a trespasser on the defendant's property and also guilty of contributory negligence. However, under New York law this does not necessarily defeat plaintiff's claim since recovery may still be had under the 'last clear chance' doctrine. *fn5" But to succeed under this theory it must appear that (1) knowledge of decedent's peril was brought home to the defendant; (2) that it had an opportunity to avert ...

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