Opinion
276 A.D. 874 93 N.Y.S.2d 395 TAYLOR v. WESTCHESTER STREET TRANSP. CO., Inc. Supreme Court of New York, Second Department December 27, 1949
Action by Lillian O. Taylor against Westchester Street Transportation Company, Inc., for injuries sustained by bus passenger when forced into seat by motion of starting bus.
The City Court of the city of White Plains, McKinley, J., entered judgment on a verdict in favor of plaintiff and defendant appealed.
The Appellate Division, memorandum by the court, held that the testimony was insufficient to establish negligence and reversed the judgment and dismissed the complaint on the law.
Addison B. Scoville, New York City, for appellant, Goodwyn Kuyk, New York City, on brief.
James R. Caruso, White Plains, for respondent.
Before NOLAN, P. J., and JOHNSTON, ADEL, MacCRATE and SNEED, JJ.
MEMORANDUM
Action to recover damages for personal injuries alleged to have been sustained when respondent, a passenger on appellant's bus, about to sit upon a seat therein, was forced into the seat by the motion of the bus when it started.
Judgment of the City Court of the City of White Plains, entered upon the verdict of a jury, reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs.
In our opinion the testimony of the respondent that the bus ‘ lurched forward’ and that it ‘ snatched forward,’ without other tangible proof that the bus was propelled forward with unusual or unnecessary force, and without other evidence of acts or of physical facts to warrant such a finding, was insufficient to establish negligence upon appellant's part. Dwyer v. Auburn & Syracuse Electric Railroad Co., 131 A.D. 477, 479, 115 N.Y.S. 364, 365; Waddy v. Brooklyn Heights Railroad Co., 156 A.D. 30, 31, 140 N.Y.S. 824; Weinmann v. Murray, 256 A.D. 1109, 12 N.Y.S.2d 200; Fish v. Brooklyn & Queens Transit Corp., 246 A.D. 843, 285 N.Y.S. 4; Quinn v. Colonial Motor Coach Corp., 266 N.Y. 584, 195 N.E. 211; Johnson v. Berkshire Street Railway Co., 292 Mass. 311, 198 N.E. 154.
In any event we would reverse the judgment and grant a new trial on the ground that the judgment is against the weight of the evidence.
MacCRATE, J., dissents and votes to reverse the judgment and to grant a new trial, with the following memorandum:
The driver testified it was unusual for a bus to lurch. The jury could say that this bus did lurch, and that the lurch was violent. It was violent enough to knock plaintiff into the seat and cause her to cry out ‘ You almost broke my back.’ The cross-examination as to other accidents, however, should not have been allowed.