Carpino v. Baker

Judgment, Supreme Court, Bronx County, entered April 13, 1979, dismissing the complaint on a jury verdict for the defendants, reversed, on the law, and the matter remanded for a new trial, with costs to abide the event. In this wrongful death action, plaintiff appeals from a judgment dismissing the complaint entered on a jury verdict in favor of the defendants. Deceased died as a result of injuries sustained when he was struck by a train owned and operated by the defendants. On a previous appeal this court reversed a judgment entered for the defendants after the trial court had dismissed the complaint without submitting the case to the jury for consideration. (See Carpino v Baker, 66 AD2d 201.) In substance, this court then held that factual issues were presented appropriate for consideration by the jury. On this trial, the court clearly erred when it charged the jury that if it found that the deceased violated section 83 of the Railroad Law and section 140.05 of the Penal Law, and was accordingly a trespasser, “plaintiff may recover only if you find that the defendants wantonly, willfully or intentionally harmed him.” In Basso v Miller (40 NY2d 233), the Court of Appeals swept aside the traditional distinctions among licensees, trespassers and invitees and established a single standard of reasonable care under the circumstances. (See, also, Scurti v City of New York, 40 NY2d 433.) Accordingly, the judgment for the defendants must be reversed and the case remanded for a new trial. We have considered the other issues raised by the plaintiff on this appeal and find them to be without merit. Concur—Kupferman, Sandler and Carro, JJ.; Birns, J., concurs and Murphy, P. J., dissents in separate memoranda, as follows: