Opinion
June 30, 1943.
Appeals from a judgment and order on motion made at the close of the trial to set aside the verdict on the grounds mentioned in section 549 of the Civil Practice Act, and an additional appeal from an order denying defendants' motion for a new trial on the grounds of newly discovered evidence.
The action was brought by the plaintiff-respondent to recover damages for personal injuries. After the notice of appeal herein had been served, the defendants-appellants moved for a new trial on the grounds of newly discovered evidence and orders were made denying all motions. The appeals from the judgments and orders were argued together upon this appeal.
On the afternoon of June 5, 1942, the plaintiff, a woman fifty-four years of age was a passenger on a bus owned by defendant Plattsburgh Coach Line, Inc. The bus proceeded northerly on Margaret Street, easterly over Cornelia Street to Cumberland Avenue to the intersection of Sailly Avenue. The bus was proceeding at a speed of at least fifteen miles per hour northerly on Sailly Avenue and when about one hundred to one hundred and fifty feet south of the intersection of Lorraine Street, which intersects Sailly Avenue in an east and west direction, Mrs. Brennan, another passenger, spoke to the driver of the bus informing him that she desired to leave the bus at Lorraine Street and left her seat to walk towards the front of the bus. Suddenly and without warning, the bus stopped and Mrs. Brennan was thrown against the windshield and the plaintiff, who was seated on the first seat back of the driver, was thrown forward and received injuries for which she claimed damages. The bus stopped in such a manner that the door on the right hand side was close to the easterly curb of Sailly Avenue and about opposite the southerly side of Lorraine Street. When the bus stopped, the driver of the bus got out and motioned to the car operated by Mrs. Kemp, which was some distance east of the intersection of Lorraine Street, and Mrs. Kemp backed up and had a conversation with the driver of the bus. Mrs. Kemp was driving east on Lorraine Street and had two of her children with her. As she approached from the west to the intersection of Sailly Avenue she slowed down to observe whether or not there was traffic and continued on her way. There was a stop sign on the southwest corner of the intersection which she did not obey because she did not stop entirely. She proceeded across Sailly Avenue and had gone easterly some distance from the intersection when she saw the bus driver motioning to her. There was no collision between the vehicles. The jury found a verdict of no cause of action against the bus driver and a verdict against the defendants Kemp for the sum of $5,000. Plaintiff's injuries were serious and permanent and consisted of a thirty per cent loss of use of her left knee joint, a periosteal fracture of the lower left femur in the knee joint located about one inch above the knee joint. Plaintiff's doctor was Dr. Frank K. Ryan, whose testimony was uncontradicted. The defendants had a physical examination by Dr. Lyman G. Barton, a reputable physician of Plattsburgh. No medical evidence was offered in behalf of the defendants on the trial. The evidence supports the judgment appealed from. On the motion for a new trial on the ground of newly discovered evidence, defendants claimed that plaintiff had picked apples for which she had earned nearly thirty dollars and that they did not know that. The Trial Judge, before whom the trial was had and before whom the motion for a new trial on the ground of newly discovered evidence was made, denied the motion on the grounds that the newly discovered evidence was not likely to change the result. Judgment and orders appealed from affirmed, with one bill of costs and disbursements. All concur.