defendant was not negligent. Moreover, drawing all reasonable inferences in the light most favorable to the non-moving party, the Court concludes that a reasonable jury could find that the failure to stop was a substantial factor giving rise to the plaintiff's injuries. See Culkin, 565 N.Y.S.2d at 656; see also, Carpino v. Baker, 66 A.D.2d 201, 412 N.Y.S.2d 617, 620 (1st Dept.1979).
Based on the foregoing, the Court denies the defendant's motion for summary judgment, but orders that the plaintiff be precluded from offering evidence at trial as to the alleged failure to warn by means of fences or signs, because, as a matter of law, the defendant was not negligent with respect to that issue. See Celotex Corp., supra.
C. Plaintiff's Cross-Motion For Summary Judgment
The plaintiff alleges that the defendant violated 49 C.F.R. § 229.125, which essentially sets forth the federal requirements for the presence of headlights on locomotives, and the strength of light emitted.
It is plaintiff's contention that the headlight installed on the train that actually hit the plaintiff was not as bright as the regulations require, and that as a result the plaintiff was not seen soon enough to stop the train and prevent the injuries. The plaintiff has submitted the report of an expert in the field of lighting. However, the report was pursuant to a test of a train, other than that involved in the accident, with a single headlight. In this case there is testimony that there were two headlights on the train and that they were switched to the "bright" position.
The report also assumes a clear night. However, there is testimony from witnesses that it was a "very foggy" night. It is reasonable to assume that such a weather condition would affect visibility no matter what level of lighting. In addition, there is testimony to the effect that the train was on a curvature of the track when it approached the plaintiff, and that this would reduce the advance visibility of any crew member looking ahead. Finally, there is evidence that the plaintiff was lying on the tracks or between the ties, which clearly would affect the ability of the defendant's employees to see the plaintiff in time to stop the train.
The regulations specifically state that "each headlight shall ... illuminate a person at least 800 feet ahead and in front of the headlight." 49 C.F.R. § 229.125(b). There is a clear question of fact as to whether the plaintiff was in front of the headlight. Moreover, given the plaintiff's dark clothing, the fact that he was lying down on the track ties, and the foggy weather conditions, even if the defendant did fail to comply with the regulation, there is a question of fact as to whether that had any effect on the ability to see the plaintiff. The facts of this case simply cannot support a ruling of liability, as a matter of law, based on the alleged violation of locomotive headlight regulations. Accordingly, the plaintiff's motion is denied.
D. Remaining Issues And Subsequent Motions
As mentioned above, new evidence has been discovered in this case that may call into question the facts of this case. In general, there appears to be evidence in record and testimonial form that would contradict significant portions of prior allegations and deposition testimony. It appears to the Court that there may be sufficient grounds to reopen discovery. Accordingly, the will refer this case back to the Magistrate Judge, and direct that a conference be conducted to resolve the discovery issues before trial.
In sum, the Court:
1. DENIES, in part, the defendant's motion for summary judgment, and ORDERS that the plaintiff be precluded from entering evidence at trial relating to the issue of the defendant's alleged failure to warn; and
2. DENIES, the plaintiff's motion for summary judgment on the issue of liability; and
3. ORDERS, that this case be referred back to the Magistrate Judge for conference to resolve the discovery issues before trial.
IT IS SO ORDERED.
Dated at Binghamton, New York
Oct 17, 1995
Thomas J. McAvoy
Chief U.S. District Judge