Opinion
October 21, 1963
In a negligence action to recover damages for wrongful death, defendant appeals from a judgment of the Supreme Court, Kings County, entered December 5, 1962 after trial, upon the verdict of a jury in plaintiff's favor in the sum of $295,549. Judgment reversed on the law and the facts, and a new trial granted, with costs to abide the event. Decedent was killed in a fall beneath defendant's train as it was leaving the station at Yonkers, New York. He was seen running along the platform, toward the train, as it was beginning to move, but there was no direct testimony as to the actual happening of the accident. Plaintiff claimed that defendant was negligent with respect to the maintenance of the platform and in the operation of the train; and both theories were submitted to the jury, which rendered a general verdict in favor of plaintiff. While there was proof that there were defects in the platform, there was a complete absence of any evidence that those defects were a proximate cause of decedent's fall. The precise cause of the accident was left to conjecture and in our opinion the fall may be as reasonably attributed to a condition for which no liability attached as to one for which it did. On the record presented, therefore, the theory of liability based upon the presence of defects in the platform should not have been submitted to the jury ( White v. Lehigh Val. R.R. Co., 220 N.Y. 131). Since one of the theories was erroneously submitted and there was merely a general verdict, the judgment must be reversed as we have no way of determining upon which theory the case was decided ( Dwarte v. First Westchester Nat. Bank, 5 A.D.2d 1011). In any event, a new trial is required as, in our opinion, any finding of negligence based upon the operation of the train would be contrary to the weight of the evidence (cf. Carlson v. Boston Maine R.R., 269 Mass. 60, 64; Dolan v. Boston Maine R.R., 328 Mass. 532, 535). Ughetta, Acting P.J., Kleinfeld, Christ, Brennan and Hopkins, JJ., concur.