The opinion of the court was delivered by: KENNETH CONBOY
KENNETH CONBOY, DISTRICT JUDGE:
This case concerns a jury determination of negligence and damages. The trial involved the alleged negligence of a railroad company when its train, proceeding caboose-first in the early hours of the morning, allegedly injured the plaintiff, Edwin Fuentes, who was sleeping by the railroad track next to a stack of radiators. Defendant Consolidated Rail Corporation ("Conrail") moves for a judgment notwithstanding the verdict or, alternatively, for a new trial or remittitur, as to the jury trial conducted, intermittently, from March 12 to March 26, 1991. The jury found Conrail 64% liable for injuries suffered by Fuentes, and, after reducing total damages by comparative negligence calculations, the jury awarded Fuentes $ 2,854,741.10.
I. Motion for Judgment Notwithstanding the Verdict
After a careful review of the record, the Court finds that, giving Fuentes the benefit of all reasonable inferences, (1) the amount of evidence favorable to Fuentes was sufficient for the jury to have found without conjecture that Conrail was 64% liable for Fuentes' injuries, and (2) the amount of evidence in favor of Conrail was not so overwhelming that a determination against Conrail was unreasonable.
The parties do not dispute that a railroad owes a duty of reasonable care to those on or near a railroad track, whether trespassers or not.
Conrail argues, however, that the accident that occurred was not foreseeable because, it asserts, Fuentes was hidden from view by the stack of radiators.
Memorandum of Law of Defendant Consolidated Rail Corporation in Support of its Motion for Judgment Notwithstanding the Verdict or Alternatively, for a New Trial, or for Remittitur Dated April 16, 1991 ("Conrail Memo") at 11. Conrail argues: first, Fuentes was sleeping and not noticeably moving at the time of the accident; second, Fuentes was hidden from the train crew's sight by a stack of radiators; and third, the area in which Fuentes slept was littered with rubbish. Id. In support of its arguments, Conrail cites Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99, reh. denied, 249 N.Y. 511, 164 N.E. 564 (1928).
The Court knows of no general rule that a duty of care is owed only to those persons who are literally visible to the tortfeasor; foreseeability is not necessarily limited by one's actual knowledge of the situation at hand. See Juiditta v. Bethleham Steel Corp., 428 N.Y.S.2d 535, 541, 75 A.D.2d 126 (1980) ("Lack of knowledge, in fact, of someone's presence on the tracks would not excuse South Buffalo from observing its own rules."). Thus, while we agree that the doctrine of scope of the risk enunciated in Palsgraf controls, the scope of the risk to be "apprehended" -- not necessarily "seen" -- depends on the circumstances in each case. Palsgraf, 248 N.Y. at 344. Moreover, Palsgraf states that if varying inferences are possible, the range of reasonable apprehension becomes a question for the jury. Id. at 345.
Therefore, it is necessary to ascertain whether a reasonable jury could have found that Conrail employees were on notice that persons may have been near the track and vulnerable to the type of accident that occurred in this case.
The circumstances of the area around a railroad track have a direct bearing on the foreseeability of a person's being on or near a railroad track. Juiditta, 428 N.Y.S.2d at 541. Viewing the relevant inferences in Fuentes' favor, it was reasonable for the jury to find that a person near the crossing of Edgewater and Garrison in the early morning hours was within the scope of foreseeable risk of being hit by large objects, such as a stack of radiators, in the way of a train. The area in question is located in a dilapidated, litter-strewn area of the South Bronx. Tr. 150; Plaintiff's Exhibit 21. It would have been reasonable for the jury to conclude that homeless people lived near the track. There was no testimony of any "no trespassing" signs in the area. Some of the testimony further reveals that people frequented the area at all hours. Robert Lapine, the locomotive engineer on the Conrail train during the accident testified that he was familiar with the scene of the accident, Tr. 460, and that he had seen people in the vicinity of the scene of the accident at 4 a.m. on various days. Tr. 493. Lapine's testimony was confirmed by a witness called by Conrail, Robert Lindsey, a Conrail locomotive engineer, who testified that he too was familiar with the scene of the accident, Tr. 778, and that he was not surprised to see people in the vicinity of the accident site late at night. Tr. 778-779.
As of the date of the accident, there was no barrier between the railroad tracks and the sidewalk by the crossing, Tr. 196, that would have shielded people from objects struck by the train. Because the people in the immediate vicinity of the Edgewater and Garrison crossing foreseeably may have been struck by an object in the path of a train, it was reasonable for the jury to have found that Conrail owed a duty of care towards Fuentes.
B. Breach of Duty of Care
A reasonable jury further might have found, as did the jury in this case, that Conrail employees Ernest Hinton and Joe Carino failed to take steps that a normally prudent person would have taken under the circumstances. The caboose had stairs that protruded beyond the track area. As stated above, the scene of the accident was in a neighborhood in which people could be found at all hours. Although the train was moving about five miles an hour, Conrail's own practice of using lanterns to illuminate the railroad track is evidence that a train moving at this speed could cause harm.
The parties do not appear to dispute, and Conrail itself has stated in its book of rules for employees, that the proper course of action for an employee in doubt was to opt for safety. Book of Rules Examination, Consolidated Rail Department, Effective February 1, 1987, General Notice. In case of doubt as to whether an object on the track could cause harm of any sort, the safe course was to reduce the train's speed, stop the train at a proper distance from the object, make a warning signal, or step off the train and investigate the object. Tr. 235.
The jury heard admissions from Hinton and Carino on the issue of breach of duty of care. Despite qualifications and testimony to the contrary by Hinton, Hinton ratified certain prior deposition statements and made statements that could allow a reasonable jury to make the following inferences in favor of Fuentes as to liability: Hinton could see forty to fifty feet in front of him, Tr. 352; when he first saw an object in front of him shortly before the accident, it appeared uncertain whether the train would make contact, Tr. 359-360, 363-364, 366, 369, 376-377; he did not know the nature of the object or whether it was a person, Tr. 362, 366, 367; he did not immediately sound a whistle, radio the conductor, or notify Carino that he spotted an object, Tr. 360; about twenty or thirty feet away from the object, Hinton radioed the locomotive engineer to stop rather than asking Carino to make an emergency stop. Tr. 381. Despite qualifications by Carino, Carino stated that he was not certain at forty feet whether the train would clear the object, Tr. 637, and that only after the train hit the object did he initiate an emergency stop. Tr. 641.
From the occurrence of the accident itself, one can infer that the train crew did not leave a reasonable stopping distance between the train and the obstruction. Given the size of the obstruction, the rule of caution as enunciated by Conrail itself, and the admissions by Carino and Hinton, we find that the jury's allocation of 64% liability to Conrail was reasonable.
C. Proximate Cause of the Injury: Foreseeability
In order for a defendant's wrongful act to be a proximate cause of a plaintiff's injury, one must, in view of all the surrounding circumstances, be able to foresee the consequences of defendant's wrongful act. See Ward v. State, 366 N.Y.S.2d 800, 807, 81 Misc. 2d 583 (1975). The issue of what is a foreseeable consequence of defendant's conduct may be subject to varying inferences, so the issue of foreseeability is generally left for the jury to resolve. Bahan v. Green Bus Lines, Inc., 465 N.Y.S.2d 784, 785, 96 A.D.2d 876, aff'd 474 N.Y.S.2d 722, 61 N.Y.2d 922, 463 N.E.2d 38 (A.D. 1983). "To establish foreseeability, plaintiffs need not demonstrate . . . that the precise manner in which the accident occurred or the extent of the injuries was foreseeable." Id.
Much of the physical evidence that might have pointed to the exact sequence of events was destroyed, so it is unclear exactly how the accident occurred; however, a reasonable jury could have determined that Fuentes' injuries were a foreseeable consequence of the negligence of Conrail employees. The alleged wrongful act that occurred was the train crew's moving toward an object "stacked, as though it was high off the guardrail" (Tr. 359-360) that might have blocked the train's path without stopping to determine the nature of the object. There was no guardrail or ditch between the sidewalk area of the train crossing and the tracks themselves. It was not a remote possibility that a large, unknown object littering a railroad track would have been heavy and metallic. Several foreseeable consequences might occur as a result of failure to take such an object seriously, such as the object's injuring a passerby, or the object's knocking off balance a ...