Rinaldo v. New York City Transit Authority — 39 N.Y.2d 285

Majority

p. 285

Jules Rinaldo, Appellant, v New York City Transit Authority, Respondent.

Argued February 9, 1976;

decided April 8, 1976

Charles F. McGuire, John J. Gallione, Benjamin H. Siff and Thomas R. Newman for appellant.

I. The court below committed reversible error in refusing to charge, as requested by plaintiffs counsel, that there is a presumption against suicide. (Kent v New England Mut. Life Ins. Co., 53 Misc 2d 82 ; Begley v Prudential Ins. Co. of Amer., 1 NY2d 530 ; Wellisch v John Hancock Mut. Life Ins. Co., 293 NY 178 ; Sackheim v Pigueron, 215 NY 62 ; Matter of Graham v Nassau & Suffolk Light. Co., 308 NY 140 ; Eastern Air Lines v Union Trust Co., 221 F2d 62 ; Green v Downs, 27 NY2d 205 ; Faurie v Lazelle, 205 NY 526 ; Douler v Prudential Ins. Co., 143 App Div 537 .) II. The court below erroneously charged that the last clear chance doctrine would come into operation only if plaintiff had been bumped or pushed but not if he were found to have attempted suicide. Moreover, the last clear chance charged was preducially confusing. (Kumkumian v City of New York, 305 NY 167 ; Elliott v New York R. T. Corp., 293 NY 145 ; Cruz

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v Long Is. R. R. Co., 28 AD2d 282 ; Mikorski v City of New York, 270 App Div 769 ; Reilly v New York City Tr. Auth., 34 NY2d 764 ; Storr v New York Cent. R. R. Co., 261 NY 348 ; Brisette v New York City Tr. Auth., 45 AD2d 960 ; Lee v City Brewing Corp., 279 NY 380 ; Lee v General Baking Co., 40 AD2d 687 ; Carroll v Wolfe, 35 AD2d 842 .) III. The admission of Patrolman Tripkin’s aided card and memo book constituted prejudicial error. (Rubin v O’Donnell, 37 AD2d 858 ; Guido v Kuster, 36 AD2d 727 ; Tarulli v Salanitri, 34 AD2d 962 ; Mandzych v Karl, 33 AD2d 786 ; Mahon v Giordano, 30 AD2d 792 ; Toll v State of New York, 32 AD2d 47 .)

John A. Murray, Stuart Riedel and Nancy Serventi for respondent.

I. No reviewable questions are presented by appellant’s request or exception to charge on the issue of contributory negligence. In any event, the charge on this issue was correct. (Galbraith v Busch, 267 NY 230 ; Abair v City of New York, 269 App Div 780 , 295 NY 789 ; Swensson v New York, Albany Desp. Co., 309 NY 497 ; Schafer v Mayor of City of N. Y., 154 NY 466 ; Acker v Manhattan Life Ins. Co., 6 AD2d 830 , 6 NY2d 802 ; Commercial Cas. Ins. Co. v Roman, 269 NY 451 ; Brenan v Moore-McCormack Lines, 3 AD2d 1006 ; Donohue v Erie County Sav. Bank, 285 NY 24 ; Reynolds v New York Cent. & Hudson Riv. R. R. Co., 58 NY 248 ; Wiwirowski v Lake Shore & Mich. Southern Ry. Co., 124 NY 420 .) II. The trial court’s rulings on the admission of documentary evidence were not only correct but also were not prejudicial. (La Posta v New York City Tr. Auth., 27 NY2d 899 ; Hayes v City of New York, 23 AD2d 832 ; Zaulich v Thompkins Sq. Holding Co., 10 AD2d 492 .)

In this action, plaintiff sought to recover damages for the severe personal injuries he suffered when he was struck by defendant’s subway train on May 9, 1968. Plaintiff testified that he was pushed or bumped off the platform onto the subway tracks, but could not extricate himself in time to avoid being struck. Plaintiff advanced the last clear chance doctrine as the theory of liability, contending that defendant’s motorman could have avoided striking him if he had maintained a proper lookout. On its behalf, defendant asserted that plaintiff attempted to commit suicide and had intentionally caused his injuries. The motorman of this particular train, as well as a disinterested third person, testified that plaintiff literally threw himself at the lead car of the decelerating

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train when it was no more than 10 feet away. They stated that after impact with the front of the train, he fell to the tracks and was run over by the front wheels of this first car before the train could be stopped. Shortly after his admission to Roosevelt Hospital, an entry in the hospital record described him as being in a "suicidal frame of mind”. Evidence was also presented that plaintiff had recently been separated by formal agreement from his wife who returned to Puerto Rico with their two sons, later moved to California and never rejoined the plaintiff. The jury, accepting the defense version of this unfortunate occurrence, found for the defendant. The Appellate Division affirmed, without opinion.

The principal issue presented to us on this appeal is whether a plaintiff, in a personal injury action, is entitled to a charge on the presumption against suicide where the defense offers proof that plaintiff was injured as a result of an unsuccessful suicide attempt.

We conclude that the trial court properly denied the requested charge and would, therefore, affirm the order of the Appellate Division.

While the presumption against suicide when death results from violence is well established in our State (Begley v Prudential Ins. Co. of Amen, 1 NY2d 530 , 533; see, also, Wellisch v John Hancock Mut. Life Ins. Co., 293 NY 178 , 184; Mallory v Travelers’ Ins. Co., 47 NY 52 , 54-55; Richardson, Evidence [10th ed], § 61), it does not follow that the law should also create a presumption against attempted suicide where the issue is raised. Generally presumptions are created to "correct an imbalance resulting from one party’s superior access to the proof’ (McCormick, Evidence [2d ed], § 343, pp 806-807) and to "assist the tribunal’s mind evidentially by inferring probatively the unknown from the known” (9 Wigmore, Evidence [3d ed], § 2498a, p 335). Thus, where death results from an accident, the law recognizes the imbalance of proof created by the unavailability of the decedent and assists the next of kin in the proof of their case by recognizing certain presumptions, one of which is the presumption against suicide. But, where death does not result from an accident, the injured party normally is available to testify at the trial as to his version of the occurrence, including testimony on the issue of attempted suicide. Under such circumstances, neither party has superior access to the proof and there is no need to assist the court evidentially as there would be where death has resulted from

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the accident, preventing the jury from hearing the decedent’s version. Therefore, the reasoning supporting presumptions suggests no need here for a presumption against attempted suicide.

Plaintiff also argues that the court erred in its instruction to the jury regarding the last clear chance doctrine. He does not object to the court’s articulation of the theory of last clear chance as such. Rather, he contends that the charge did not permit the jury to apply the doctrine if it determined that although plaintiff did jump onto the tracks in a suicide attempt, he did so when the train was still far enough away to permit the motorman to halt it before hitting plaintiff. This argument assumes that the jury might reject so much of the defense testimony as indicated that the train was less than 10 feet away when plaintiff jumped, while at the same time discrediting the portion of plaintiffs testimony relating to his being pushed. However, even in the unlikely event that the jury did view the evidence in this manner, we think that the charge, read as a whole, permitted the jury to consider all of the evidence in the case and properly apply the last clear chance doctrine.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, with costs.

Cases cited

Kent v. New England Mutual Life Insurance 53 Misc 2d 82 N.Y. Sup. Ct. 1966-06-27 p. 285
Begley v. Prudential Insurance 1 NY2d 530 N.Y. 1956-07-11 at 533 p. 285, p. 287
Wellisch v. John Hancock Mutual Life Insurance 293 NY 178 N.Y. 1944-07-19 at 184 p. 285, p. 287
Sackheim v. Pigueron 215 NY 62 N.Y. 1915-05-25 p. 285
Claim of Graham v. Nassau & Suffolk Lighting Co. 308 NY 140 N.Y. 1954-12-31 p. 285
Green v. Downs 27 NY2d 205 N.Y. 1970-11-12 p. 285
Faurie v. Lazelle 205 NY 526 N.Y. 1912-06-04 p. 285
Kumkumian v. City of New York 305 NY 167 N.Y. 1953-04-09 p. 285
Elliott v. New York Rapid Transit Corp. 293 NY 145 N.Y. 1944-06-14 p. 285
Cruz v. Long Island Rail Road 28 AD2d 282 N.Y. App. Div. 1967-11-28 p. 286
Reilly v. New York City Transit Authority 34 NY2d 764 N.Y. 1974-06-05 p. 286
Storr v. New York Central Railroad 261 NY 348 N.Y. 1933-04-11 p. 286
Brisette v. New York City Transit Authority 45 AD2d 960 N.Y. App. Div. 1974-09-23 p. 286
Lee v. City Brewing Corp. 279 NY 380 N.Y. 1939-01-10 p. 286
D'Agostino v. Quality Courts Motel 35 AD2d 842 N.Y. App. Div. 1970-11-30 p. 286
Guido v. Kuster 36 AD2d 727 N.Y. App. Div. 1971-03-08 p. 286
Mahon v. Giordano 30 AD2d 792 N.Y. App. Div. 1968-07-11 p. 286
Toll v. State 32 AD2d 47 N.Y. App. Div. 1969-04-29 p. 286
Galbraith v. Busch 267 NY 230 N.Y. 1935-04-01 p. 286
Abair v. City of New York 295 NY 789 N.Y. 1946-03-07 p. 286
Swensson v. New York, Albany Despatch Co. 309 NY 497 N.Y. 1956-01-12 p. 286
Schafer v. Mayor of New York 154 NY 466 N.Y. 1897-12-07 p. 286
Acker v. Manhattan Life Insurance 6 NY2d 802 N.Y. 1959-05-14 p. 286
Commercial Casualty Insurance v. Roman 269 NY 451 N.Y. 1936-01-08 p. 286
Brenan v. Moore-McCormack Lines, Inc. 3 AD2d 1006 N.Y. App. Div. 1957-06-25 p. 286
Donohue v. Erie County Savings Bank 285 NY 24 N.Y. 1941-03-06 p. 286
Reynolds v. New York Central & Hudson River Railroad 58 NY 248 N.Y. 1874-09-22 p. 286
Wiwirowski v. Lake Shore & Michigan Southern Railway Co. 124 NY 420 N.Y. 1891-03-10 p. 286
La Posta v. New York City Transit Authority 27 NY2d 899 N.Y. 1970-11-25 p. 286
Zaulich v. Thompkins Square Holding Co. 10 AD2d 492 N.Y. App. Div. 1960-05-10 p. 286
Mallory v. Travelers' Insurance 47 NY 52 N.Y. 1871-12-12 at 54-55 p. 287