Opinion
June 28, 1949.
Appeal from Supreme Court, Rensselaer County.
Plaintiff was a passenger in a bus. Her contention was the bus stopped suddenly causing the defendant Razzano to run his car into it and cause plaintiff's injury. The measure of the bus company's duty in this situation was ordinary care, not the "high" or "highest" degree of care applicable to some other kinds of common carrier responsibility. ( Barbato v. Vollmer, 273 App. Div. 169, 171; Taddeo v. Tilton, 248 App. Div. 290.) The verdict was against the weight of the evidence as to causation and in attributing to superficial injuries with muscle spasm as the only objective manifestation a permanent aggravation of a cardiac condition. Judgment reversed, on the law and facts, and a new trial ordered, with costs to abide the event.
Brewster, Deyo, Santry and Bergan, JJ., concur; Heffernan, J., dissents, in the following memorandum:
I dissent and vote to affirm the judgment and order. It seems to me that the evidence of negligence of the bus company has been clearly established. This bus stopped at Fifth Avenue, then proceeded into the intersection of 104th Street and made another stop which resulted in plaintiff's injuries. On the question of damages plaintiff was sixty-eight years of age. She was earning a substantial amount weekly. She has been unable to work since and will never labor again according to the medical evidence. Having that in mind I am not prepared to say that the damages are excessive. So far as the Judge's charge goes I think that we can justify that under our decision in Barbato v. Vollmer ( 273 App. Div. 169). Then too as I read the record there was no exception to the statement of Justice MURRAY that defendant was charged with a high degree of care.