Lowenbein v. Doyle

• Citation: 208 Misc. 990,145 N.Y.S.2d 756
• Parties: Myrna Coleman LOWENBEIN, an infant (formerly Myrna I. Coleman) by Martin Coleman, her guardian ad litem and Martin Coleman, Helene L. Fisch, an infant, by Sidney J. Fisch, her guardian ad litem, and Sidney J. Fisch, Plaintiffs, v. Lester T. DOYLE, as Trustee in Reorganization of Surface Transportation Corporation of New York, Patrick J. Lundy, Joseph Pelose and Frank De Ruggiero, Defendants.
• Decision Date: 20 October 1955
• Court: United States State Supreme Court (New York)

Page 756

145 N.Y.S.2d 756

208 Misc. 990

Myrna Coleman LOWENBEIN, an infant (formerly Myrna I Coleman) by Martin Coleman, her guardian ad litem and Martin Coleman, Helene L. Fisch, an infant, by Sidney J. Fisch, her guardian ad litem, and Sidney J. Fisch, Plaintiffs, v. Lester T. DOYLE, as Trustee in Reorganization of Surface Transportation Corporation of New York, Patrick J Lundy, Joseph Pelose and Frank De Ruggiero, Defendants.

Supreme Court, Trial Term, Bronx County, Part VI.

Oct. 20, 1955.

Martin Coleman, Mount Vernon, by Leo Eckman, New York City, of counsel, for plaintiffs.

Saxe, Bacon, O'Shea & Bryan, New York City, by G. Kuyk, New York City, of counsel, for Doyle & Lundy, defendants.

A. J. DeCicco, New York City, by R. F. White, New York City, of counsel, for Pelose and De Ruggiero.

BONEPARTH, Acting Supreme Court Justice.

This case was tried before the Court without a jury. Findings and conclusions were waived.

The infant plaintiffs were passengers in a Surface Transportation bus, going north on Webster Avenue, under the elevated structure. The bus was operated by the defendant Lundy. Defendant Pelose was the owner of a truck (operated by his employee, defendant De Ruggiero) which was proceeding south on Webster Avenue.

The truck had rear doors, which opened to the side; and as it proceeded down Webster Avenue, the doors were tied to the sides of the truck, one on each side, thus leaving the back open.

At some point on Webster Avenue, between cross streets, there was a contact between the left rear door of the truck and the front left corner of the bus, as the vehicles were about to pass each other. The bus driver was thrown to his right and the bus struck one of the pillars supporting the elevated structure, about two feet to the right of the bus. The contact between the bus and the pillar was at a point on the right front of the bus and near the right front seats. After the accident, when the police arrived, the door from the left side of the truck was found in the roadway, 17 feet north of the front end of the bus. This door was four feet high, three feet wide, and four inches thick, and had a steel facing 1/4 inch thick. Its weight may be judged by the fact that a tow truck was required to lift it.

The only witnesses, who saw what occurred immediately before the contact, were the defendant Lundy (the bus operator) and a disinterested witness, one Ambrose. Ambrose was driving south on Webster Avenue, some distance behind the truck, and had stopped to make a turn into a garage on Webster Avenue. He observed the bus coming north and the truck going south.

The testimony of these witnesses establishes that, before any contact was made between the truck and the bus, the left door of the truck swung open from the side and struck the bus.

A police officer, who later arrived at the scene of the accident, found in the eyelet on the left side of the truck, a piece of rope and two pieces of wire. The rope and wire were used in an attempt to secure the door to the left side of the truck, instead of a steel rod, part of the truck equipment, which was missing on the left...