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Plaintiff Became Aware Of This Impending Collision Of Train

State of New York Supreme Court, Appellate Division Third Judicial Department

Background:
When plaintiff's engine reached one of the electronic switches, plaintiff noticed that the engine pushing three cars was headed for the same switch at the same time. Apparently, defendant's tower conductor had routed both trains into the same switch simultaneously. Plaintiff became aware of this impending collision only seconds before impact. He attempted to scramble up the ladder out of harm's way, but, unfortunately, could not do so in time. The other train caught plaintiff's leg and pulled him down into the core of the accident. Plaintiff's left leg was virtually blown open from about the middle of his thigh down to his calf and he had no kneecap and his right foot was pinned between the engine and the car that had hit him." Two emergency response teams arrived to assist in extracting plaintiff from the wreckage and treating is injuries.
After the amputation, plaintiff continued to experience problems. He still had difficulty sleeping, was discouraged at
his progress and now had phantom pain in his missing limb. Plaintiff was previously an athlete and outdoorsman. His baseball pitching abilities caught the attention of scouts for a professional baseball team.

Certainly, review of verdicts in other cases is appropriate, but such review cannot be the sole factor considered. Each case must still be considered on its own merits and it cannot be disputed that this is a case with an extraordinary set of facts.

Ordered:
That the judgment and order are modified, on the law, without costs, by reversing so much thereof as awarded plaintiff $1,500,000 for future medical expenses and $6,000,000 for past pain and suffering; new trial ordered on the issues of
future medical expenses and past pain and suffering unless, within 20 days after service of a copy of the order herein,
plaintiff stipulates to reduce said awards to $1,146,260 and $4,000,000, respectively, in which event the judgment and order, as so modified, are affirmed.

Date:
March 25, 2004

Clerk of the Court:
Michael J. Novack

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