This section contains the nature of the case and procedural background.

The City of New York (D)'s train came to an emergency stop in the subway system. There were three possible reasons for this emergency stop. The motorman did not check out the reason-he just reset the brakes and restarted the train. The train again stopped. The motorman and conductor once again simply restarted the train without checking out why it stopped. The train stopped for a third time. This time, the men investigated and found the mangled corpse of Kumkumian (P), the decedent. The motorman had not seen P enter the tracks. In fact, P had no business being on the tracks. The trial court sent the case to jury, even though D asked for a directed verdict. Had D checked the brakes the first time and found P, it is probable that D would have received a directed verdict. The trial court sent the case to jury 'on the theory of ordinary negligence as well as under the doctrine of last clear chance.' The jury had the option of choosing either theory if it found for P. The jury returned a verdict for P on the theory of last clear chance. The appellate division overturned that decision, allowing D its directed verdict. P appealed.

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