Sullivan, J. P., and Smith, J., dissent in a memorandum by Smith, J., as follows: I dissent because the verdict was against the weight of the evidence, because the apportionment of liability was against the weight of the evidence and because the award was excessive.
Plaintiffs legs were severed below his knees when on May 8, 1983 at approximately 9:15 p.m., he jumped onto a subway trackbed, lay down across the tracks and was run over by an oncoming train.
Plaintiff, an epileptic, disclaimed all responsibility for the accident, arguing that his actions were involuntary and the result of a prolonged trance following a seizure suffered earlier that day. He contended that the motorman, who had sufficient opportunity to observe his conduct on the tracks, was negligent in failing to stop the train before it ran him oyer.
The motorman, who prior to the accident had operated trains on the IRT number three line for some 13 years, testified that the train entered the station at a speed of less than 15 to 20 miles per hour. This was due to a curve on the tracks ending just prior to entering the 34th Street station. According to the motorman, about 150, or three car lengths, into the station, he observed plaintiff, some 52 feet in front of him and in midair above the tracks. He immediately pulled back the brake handle and blew the whistle, while continuing to observe plaintiff who landed on his feet, pivoted and lay down on the tracks. The train came to rest some 13 feet, or about one-fourth car length, over plaintiff.
The record reveals that the 59-year-old plaintiff, who suffered from and was being treated for epilepsy, was estranged from his wife, had been unemployed since 1972, had previously attempted suicide, and had a psychiatric history of depression and of violent episodes. Plaintiff testified that he had only a vague recollection of his activities on the day of the accident. He recalled, however, leaving Metropolitan Hospital early that morning and drinking beer during the day. Emergency Medical Service attendants reported the smell of alcohol on plaintiffs breath following the accident.
Two neurologists retained by plaintiff offered their opinions that Lucas’ leap from the platform was spurred by postictal psychosis, a trance-like state of confusion, which followed an epileptic seizure which they believe plaintiff suffered that *24morning and for which plaintiff was admitted to Metropolitan Hospital. The hospital records reveal that plaintiff was admitted to Metropolitan Hospital early that morning "hyperventilating and feigning, comatose state without fibulation [fibrillation]” and that he walked out of the hospital at about 8:45 A.M.
A science expert called by plaintiff testified that, upon breaking, before coming to rest, a train moving at 15 miles per hour would continue to travel about 75 feet, within approximately 6V2 seconds. These calculations included consideration of the motorman’s approximated reaction time and of the approximate time required for the train’s braking system to operate once activated. Plaintiff’s expert also indicated that it would have taken plaintiff 6 to 8V2 seconds to jump from the platform, whirl around and lie down. This conclusion was based upon the 79-year-old expert timing himself with a stop watch as he jumped off the porch of his New Jersey home.
An engineer called by the defense, with a background in the design and operation of trains, testified that once thrown into emergency, the stopping distance for the nine-car train when traveling approximately 15 miles per hour was 60 to 75 feet within 5 to 6 seconds. He concluded, based upon demonstrations with several Transit Authority employees, that it would have taken plaintiff 3 to 4 seconds, once he was in midair, to assume his position on the tracks.
The jury answered interrogatories indicating that the motorman was negligent in failing to bring the train to a stop before it made contact with plaintiff and that plaintiff was acting in a conscious, volitional manner when he jumped to the tracks. It found the motorman and plaintiff negligent to the extent of 80% and 20%, respectively, and set damages at $3 million.
The court denied defendant’s motion to set aside the verdict on the issues of liability and damages, concluding that the jury was not bound by the expert’s testimony as to how much time elapsed between plaintiff’s jump and the accident. Based upon the motorman’s testimony that he had plaintiff in view all the time he was on the track, the court held that the jury was free to conclude that the motorman viewed plaintiff for substantially longer than he claimed prior to applying the brakes. Based upon the nature of plaintiff’s injuries, the extensive period of hospitalization, and the pain and suffering occasioned, the court found that the award was not shocking. Finally, the trial court refused to substitute its judgment for that of the jury with respect to the allocation of damages.
*25In all negligence cases the fact of negligence may be proven circumstantially. (Feblot v New York Times Co., 32 NY2d 486, 494 [1973].) However, "where the evidence is capable of an interpretation which makes it equally consistent with the absence as with the presence of a wrongful act, that meaning must be ascribed which accords with its absence. In other words, [negligence] can only be established by proof of such circumstances as are irreconcilable with any other theory than that the act was done.” (Digelormo v Weil, 260 NY 192, 199-200 [1932]; Feblot v New York Times Co., supra; Bernstein v City of New York, 69 NY2d 1020, 1021 [1987].)
Here, the evidence was undisputed that the train entered the station at approximately 15 to 20 miles per hour. Plaintiffs scientific expert testified that it would have taken between 6 and 8V2 seconds for plaintiff to have jumped and positioned himself upon the tracks. He further testified that it would have taken the motorman approximately 6 to 66Ao seconds to stop the train, assuming that the train was traveling at 15 miles per hour. Plaintiff’s counsel’s examination of the motorman attempted to establish that the motorman’s observations of plaintiff’s actions on the track were so extensive that these observations must have commenced from a distance of more than 52 feet. However, the only evidence as to how long plaintiff was on the track reveals that the motorman could have observed all that he did and still have activated the braking system from 52 feet away, causing the train to stop within 75 feet and within 6 Vi seconds. This evidence was provided by plaintiff’s own witness. To reach a contrary conclusion, the jury was required to speculate.
As defendant acknowledges, if the train had been traveling at 15 miles per hour and if it took plaintiff more than 66Ao seconds to maneuver onto the tracks, the Transit Authority might be liable. However, since the evidence presented showed a number of time-distance combinations, one or more of which suggest that the motorman was not negligent, plaintiff has failed to prove that the negligence of the defendant’s train operator caused his injury.
Moreover, the jury’s apportionment of liability between defendant and plaintiff, who they found voluntarily jumped from the platform, also was against the weight of the evidence. The evidence supports the view that plaintiff positioned himself on the tracks in order to effect the resulting injury. (See, Robinson v New York Tr. Auth., 105 AD2d 614 [1st Dept 1984] [apportionment of 40% for defendants and 60% for *26plaintiff who was intoxicated and stumbled into the train as it left the station]; Gonzalez v City of New York, 123 AD2d 666 [2d Dept 1986].)
Finally, in view of the absence of claimed lost earnings the award of $3 million in damages was excessive.