Healy v. Consolidated Rail Corp. , 549 N.Y.S.2d 700 ( 1990 )

Judgment, Supreme Court, New York County (Martin B. Stecher, J.), entered April 6, 1988, in favor of defendant Consolidated Rail Corporation upon a jury verdict of no liability, unanimously affirmed, without costs.

Plaintiffs automobile was struck by defendant’s train as the plaintiff was proceeding across a "grade crossing” in Spring-dale, Connecticut. Based primarily upon the testimony of defendant’s engineer, who stated that he saw the proper warning lights working as plaintiff and the train approached the crossing, and the testimony of a responding police officer and defendant’s employee, who stated that the system was still operating 10 minutes and one hour after the accident, respectively, the jury found that the warning equipment was operating properly when plaintiffs vehicle approached the crossing. Thus, the jury returned a verdict of no liability.

The trial court’s exclusion of plaintiffs evidence consisting primarily of testimony that the signal in question had malfunctioned on an unspecified prior occasion over a year before the occurrence, and on other unspecified occasions in years past, did not constitute an abuse of discretion. The proffered evidence was remote in time, and given the evidence that the system was inspected monthly and tested every other day, there was no proof that the equipment was in substantially the same condition on the date of the accident as it was at the times of the prior malfunctions (Hyde v County of Rensselaer, 51 NY2d 927, 928 [1980]). Thus, the probative value and relevance of the evidence were extremely low. Concur — Murphy, P. J., Sullivan, Ross, Rosenberger and Ellerin, JJ.