good morning the morning may please the court i am murray kaplan on the attorney for the appellant charles niles the reason we brought this appeal is that the district court in deciding summary judgment against us decided to keep factual issues first at what point did the train operators see that the object laying in front of them was a person second at what point should the train operators have seen that it was a person and the standard of care is expressed in the new york court of appeals case of sotto versus new york transit new york city transit authority and the burden is reasonable care under the circumstances which has been defined as that when the train operator sees a person on the tracks then there is a person yes sees a person on the tracks that they are supposed to take whatever measures they can to stop before striking the person i think your adversary would disagree with yes your honor if i might continue so this this very same case does go on to say that it's also negligent if the it's also a jury may conclude that it's negligence if the train operator fails to see what is there to be seen and in this situation in two places in the district court case they specifically page ten and eleven of the decision they specifically make findings of fact saying in one place once it was apparent it was a person the train operator slammed on the brakes this is reasonable care this finding was based solely upon the self serving statements of the train operators the there were no other witnesses my client is unconscious on the tracks the train operators the engineer one of the witnesses are going to be there there are going to be no other witnesses your honor and if i might make that next point to address that question which is that that  where the verses the city of of new york the court judge desmond but once again new york court of appeals said that a jury has the right to disregard the self serving testimony of the train operators even if there are no contradictory witnesses available and so clearly as stated in coleman versus new york city transit authority these witnesses  interested witnesses even though the parties because they are trying to relieve themselves of culpability so the question goes well have we presented issues of fact that might tend to indicate that that the culpability is i'm sorry that that credibility isn't a question it's a capital what exactly is the issue for the material issue so the material issue of fact are two things at what point did they see that this person laying on the track was this object laying in the per track was indeed a person did they see it earlier in this then you're saying to us is that your evidence  summary that would be part of it your honor in the other part would be to prevent present the other facts that would tend to show that it's hard to get into their mind and prove that they are lying perhaps we can do that perhaps we can't their their their their their traveling essentially a fifth of a mile over a minute eleven hundred and ten feet towards an object in the center of the town a human sized object that they can see actually hoang over the left rail to the direction to the left and extend extending all the way to the right rail the distance between the rails being four feet eight and a half inches so they knew its  honor with due respect i do not believe that is the case that is the case a political pull to open run cases so an open run case is when the train is operating in an area with no with  a remote area where there aren't there isn't an immediate population and they're going at a high rate of speed and so then we have this open run rule which is right there in the p j eyes an exception to the general rule set forth in a sotto which says that ok on an open run you can first just honk blow your horn and see if the personal get out of the way before you need to try to stop it's all after you see that they're not going to get out of the way that you need to try to stop but that is not the case when it's not an open run in here it's the opposite of of an open road there's a ten mile per hour speed limit in the village of whose it falls they were going ten miles an hour it was in the center of the village with houses and businesses on both sides with people parking right along the track with people the operators admitted that they knew that that people cross the nug designated areas there these are interested witnesses even in garbage bag is a garbage bag when you're staring at something for over a minute and it's human size in the middle of the village then is that credible and that's something that in the case of knows where the versus the city it says the jury has the right  night it was daylight it was straight ahead they admitted that they were there view it was totally unobstructed they traveled over a thousand feet eleven hundred ten feet and at when they were within eighty eight feet that's when they applied the brak witnesses but the jury is intitled they are interested witnesses per coleman where it was the same for the same facts there was the only witnesses were were the were the operators and so the court said they're interested witnesses when they're interested witnesses were entitled to cross examine them were entitled to see if it makes sense and we've got soto that says there's two questions one is when did they really see these this person on the track and the other is ok well when should they have seen there's more than one case that says that that when in the new york court of appeals it says that even if if they didn't see if they should have seen then that is the basis for negligence and there's the p j i and there's skirting versus the city of new york which is another court of appeals case that says that the jury in assessing whether the train operators exercise reasonable care should be considering the density of the population if it's likely that people are crossing they're clearly they should have seen that human sized object which they acknowledge right where people are crossing right in the center of the village was likely to be a person something they should have seen you reserved a couple minutes  you please the court kathleen mccaffrey bain's for pan am railways all addressed first these purported issues of fact there is no testimony evidence or any other suggestion that the victim in this accident could have or should have been identified by the crew as a human being earlier that the moment when they did do that the suggestion that there are credibility issues here is not enough to overcome the failure to produce or repair or a lot of undisputed facts which your adversary argues raises the fundamental jury question as to when they should have known it i mean i could go through them but he has several times more daylight it's ten miles an hour it's the middle of town it's a place where people cross their cars there is the these are the objects span the rails the people in the real world know what the did you know with what the what the is is passed out fainted or dead wrong and therefore why why can't a jury taking all those undisputed facts come to the conclusion that they should have been should show down slowed down more crew there is nothing that questions that but the the you know put the testimony of the crew is we didn't know and the question is should they have no no they can't really give testimony or whether they i mean why would  to give credit or anybody have to give credit to what they say as to what they should have known they can give testimony that they didn't know and my impression is that would have to be credited the question is should they have  given all of these undisputed given that there is testimony from both members of the crew that they watched it continuously it never moved and it appeared to be debris or garbage bag and that as soon it was as it was identifiable as a human being they put the brake on the train the plaintiff had a duty to come forward with some fact to at least raise the suggestion that this trash bag or debris could have been identified earlier as  court has refuted since one thousand nine hundred seventeen in the mccarthy case that just because the train was passing few passing through a populated area it should have had a heightened suspicion of something going on in fact this crew once they observed something on the track continue to monitor it the entire time as they approached and as soon as it was identified they stopped the train there is that that is undisputed testimony the plaintiff could have come forward if it existed with some evidence to suggest that a person of appropriate and meeting the standard of eyesight required of a crew could have or should have seen that this was a person one hundred feet sooner than they did two hundred way that they could your honor but they didn't they didn't put it in any form whatsoever in fact there's no testimony there's no evidence below or anything in the record that suggests that they that the crew could have seen this as a person earlier than they did the suggestion that they should be yes your honor was the crew deposed the crew was deposed at length and you're leading directly to my point the suggestion that they should be cross examined is  i don't want to know is it possible on the basis of what we know from the deposition testimony in the record that a juror could think that there was something wrong with with the testimony of the person who was the plaintiff depose these two witnesses at length there were no restrictions on the questioning plaintiff has been unable to come forward with any fact or purported fact which suggests that the testimony of these two witnesses is either incredible unreliable or self serving other than to suggest that they have an interest in the outcome of this case they the statute of limitations has expired they are not subject to any criminal penalty any violation of railroad law or operation or any civil liability in this case they have been deposed at length again it was it was this court in two in one thousand nine hundred seventeen that said there is no duty to stop until you realize that the person cannot or will not remove himself from harms way that standard was reiterated in the respect he case in one thousand nine hundred seven which judge brown as was on the panel of that is the existing law in this case there is no legal authority either under statute regulation common law nor any public policy argument that has been put forth by the plaintiffs to overturn century old case law there is no industry standard or practice that upon observation of an adamant object any action whatsoever need be taken to slow a train all of the factual evidence that is before this court this is the same evidence that would be before a jury is that the crew was travelling within the speed limit they they gave appropriate mornings at the designated intersections they monitor the situation closely and as soon as they observed that it was not an inanimate object they took action that was within the standard of reasonable care that this court has imposed plaintiff makes a very emotionally appealing argument he was certainly tragically injured as a result of this accident however unfortunately the state of the law does not require the duty that he seeks to impose on this crew and to do so would have ramifications well beyond the unfortunate circumstances of mr niles we therefore respectfully ask that this court affirm the lower court's decision awarding summary judgment  you thank you your honor i disagree with pretty much all of that your honor with due respect to of course everyone here to begin with attorney bands continues  otherwise the duty is to stay there's no blowing the horn and seeing if the person gets out of the way that might have been what they're doing that's what we think they were doing but that's not allowed as soon as they see a person on the tracks according to soto they're supposed to try to stop or as soon as they should have seen as is in many cases in the court of appeals and in the lower courts and the the whole idea that that there are no facts to support  that the claim that they should that they either saw or should have seen is ridiculous i've just cited many they're there they say they are approaching human size object in the center of town knowing people cross there and everything else they're staring at it but they can't even tell if it's debris or a garbage ok so what is it are they honk the horn waiting for the person to go at a certain point before eighty eight feet they can see in broad daylight directly in front of them that this is a human being your honour's this is ridiculous and we have enough evidence and we are entitled as it says in coleman and it says and knows where the both of those cases neither of those cases had another witness and and  where the they see the court explicitly and if i might just read that one quote your honor it says the station was well lighted and the length of the platform was such that the train must have traveled more than four hundred feet on straight level stretch of track inside the lighted station before the accident all this we think made a jury question as to whether or not the defendants motormen was negligent in failing to see the decision until the train was so close that the disaster was inevitable and then judgement desmond went on to say harris case gives the true rule of political here and an action for injuries the person directly charged with having cause injuries although he may not be the defendant is so interested that the jury may be at liberty to disbelieve his testimony although it is not otherwise impeached or contradicted thank you thank you yours you both