While apparently discrediting the opinions of plaintiff's medical experts, the jury nonetheless apportioned liability at 80% for defendant and 20% for plaintiff. The jury's apportionment of liability, after finding that plaintiff's actions in jumping to the track were voluntary, was against the weight of the evidence (see, Robinson v. New York City Tr. Auth., 105 A.D.2d 614). We disagree, however, with the dissent's conclusion that the finding that the motorman was negligent was also against the weight of the evidence.
She was then dragged a considerable distance. The jury's finding that defendant was 100% liable was supported by a fair interpretation of the evidence, namely, that the accident could have been averted if the conductor had seen what there was to be seen, that plaintiff was near the train and that he should have waited before signaling the motorman to proceed ( id.; Robinson v New York City Tr. Auth., 105 AD2d 614). Plaintiff's expert notice set forth in reasonable detail the subject matter and substance of the expert's anticipated testimony, in compliance with CPLR 3101 (d) ( see Nedell v St. George's Golf Country Club, 203 AD2d 121).
Nor can it be said to be against the weight of the evidence ( Lewis v. Progressive Agency, 6 AD3d 293; Jamal v. New York City Health Hosps. Corp., 280 AD2d 421, 422). However, we believe that the jury's apportionment of liability is against the weight of the evidence and that our suggested reapportionment of liability more reasonably reflects the reality of the circumstances here ( see Roseboro v. New York City Tr. Auth., 10 AD3d 524; Mena v. New York City Tr. Auth., 238 AD2d 159; Robinson v. New York City Tr. Auth., 105 AD2d 614). Reargument or other relief denied; cross motion for reargument granted and, upon reargument, the decision and order of this Court entered herein on June 9, 2005 ( 19 AD3d 166) is hereby recalled and vacated and a new decision and order substituted therefor.
Nor can it be said to be against the weight of the evidence ( Lewis v. Progressive Agency, 6 AD3d 293; Jamal v. New York City Health Hosps. Corp., 280 AD2d 421, 422). However, we believe that the jury's apportionment of liability is against the weight of the evidence and that our suggested reapportionment of liability more reasonably reflects the reality of the circumstances here ( see Roseboro v. New York City Tr. Auth., 10 AD3d 524; Mena v. New York City Tr. Auth., 238 AD2d 159; Robinson v. New York City Tr. Auth., 105 AD2d 614).
It is generally a question for the jury to determine whether the carrier exercised the degree of care required under the circumstances (O'Leary v American Airlines, 100 AD2d 959; Robinson v New York City Tr. Auth., 105 AD2d 614). In addition, a carrier owes a duty to an intoxicated passenger "not to leave him in a worse position than when they took charge of him" (Kelleher v F.M.E. Auto Leasing Corp., 192 AD2d 581, 584).
It is generally a question for the jury to determine whether the carrier exercised the degree of care required under the circumstances (O'Leary v American Airlines, 100 AD2d 959; Robinson v New YorkCity Tr. Auth., 105 AD2d 614). In addition, a carrier owes a duty to an intoxicated passenger "not to leave him in a worse position than when they took charge of him" (Kelleher v F.M.E. Auto LeasingCorp., 192 AD2d 581, 584).
It is generally a question for the jury to determine whether the carrier exercised the degree of care required under the circumstances (O'Leary v American Airlines, 100 AD2d 959; Robinson v New York City Tr. Auth., 105 AD2d 614). In addition, a carrier owes a duty to an intoxicated passenger "not to leave him in a worse position than when they took charge of him" (Kelleher v F.M.E. Auto Leasing Corp., 192 AD2d 581, 584).