Miller v. Inter City Transp. Co.

• Decision Date: 16 October 1961
• Citation: 31 Misc.2d 777,221 N.Y.S.2d 433
• Parties: Samuel MILLER, Plaintiff, v. INTER CITY TRANSPORTATION CO., Inc., Defendant.
• Court: New York City Court

Page 433

221 N.Y.S.2d 433

31 Misc.2d 777

Samuel MILLER, Plaintiff, v. INTER CITY TRANSPORTATION CO., Inc., Defendant.

City Court of Bronx County, Trial Term, Part III.

Oct. 16, 1961.

Freedman & Marcus, New York City, for plaintiff, by Perry Pazer, New York City, of counsel.

Joseph L. Rudell, New York City, for defendant.

ARTHUR WACHTEL, Justice.

The plaintiff, while traveling in defendant's bus, on August 4, 1957, got up to change his seat and while the bus was in motion proceeded into the aisle. He testified that the bus was going about fifty miles an hour; he took several steps holding on to the bars on the backs of the seats and the bus came to a sudden 'very unusual' stop. He further testified that his grip was 'torn off' and he was thrown forward; his fall was broken when he hit his left hip and he crashed to the floor and fell 'flat on my face'. He was 'knocked out', 'badly stunned'.

A fellow passenger, Mrs. Stone, who was seated at the time of the accident, testified that the bus came to a 'sudden, violent stop'; there was evidence that she was shaken by a forward motion, and that she was 'shocked' also.

Plaintiff saw a doctor the next day and was referred to an orthopedist who examined him on August 31, 1957, the again in January 1961. The orthopedist diagnosed his injuries as a whiplash injury, cerebral concussion and post-concussion syndrome. He was later treated at Mt. Sinai Hospital from May 1958 to November 1958 and intermittently thereafter in February and June 1959, and in June, July and October 1960, for recurring neck pain and limitation of motion.

A cervical flexion-type collar was prescribed and was worn by the plaintiff from time to time to relieve the pain. In February 1959, traction of the cervical spine was applied but the pain persisted thereafter, and in July 1960, the need for cervical traction was again noted. The plaintiff complained that the pain still 'comes and goes' and that as a result of the injury received from the accident he was required to retire from active work.

The plaintiff had pre-existing severe, osteoarthritic changes in the cervical spine and had degenerative disc disease. He claimed that the whiplash injury caused by the accident aggravated this osteoarthritic condition and his orthopedist supported this contention.

The jury gave a verdict for the plaintiff in the sum of $4,000. Defendant now moves to set aside the verdict on the ground that:

(1) Plaintiff has failed to establish any negligence on the part of the driver;

(2) Plaintiff has failed to present a prime facie case;

(3) The credible evidence establishes that there really was no accident; and

(4) The verdict was excessive and the result of sympathy for the plaintiff and prejudice against the defendant.

The defendant's defense was that the accident did not happen at all. The driver testified that there was no unusual or violent stop; that no one reported to him any injury because of a sudden stop; that there were no unusual occurrences during the trip; that he did not see anyone fall or involved in any accident.

Accordingly, the first question to be resolved in this case was whether or not plaintiff sustained his burden of proof that the accident happened at all. Implicit in the jury verdict was that the accident did happen as the plaintiff contended, and that he was thrown to the floor of the bus by a sudden stop with a force sufficient to tear his grip from the backs of the seats and propel him flat on his face on the floor and sustain the injuries of which he complains.

The next question is whether or not the proof was sufficient to support a prima facie case. The rule is well settled that sudden stops, lurches and jerks of a bus in the course of its operation are not in and of themselves sufficient proof of negligence. What evidence in addition is necessary to support a prima facie case depends upon 'other tangible proof that the bus was propelled forward with unusual or unnecessary force' and 'other evidence of acts or of physical facts to warrant such a finding'. (Taylor v. Westchester Street Transportation Co. (2d Dept.) 276 App.Div. 874, 93 N.Y.S.2d 395). 'If out of the ordinary and unusual, the sudden jerk was evidence warranting the imputation of negligence in the operation of the train. Gardner v. Central Park, North & East River R. R. Co., 218 N.Y. 753, 113 N.E. 1056; Futoransky v. Nassau Electric R. R., 227 N.Y. 638, 126 N.E. 908'. (Trudell v. New York Rapid Transit Corp., 281 N.Y. 82, at page 85, 22 N.E.2d 244, at page 246).

A reading of the pertinent cases discloses that the physical facts that will support a prima facie case must be more than mere jostling, shifting, swaying or bending of the body. It must at least be such a violent force as will sweep a passenger bodily off his feet. As Mr. Justice Seabury said in Tompkins v. Interborough Rapid Transit, 88 Misc. 20, at page 21, 150 N.Y.S. 219, at page 220: 'The fact that the car was stopped so suddenly and violently as to throw the plaintiff off her feet justifies the inference that due care in the operation of the car was not used. The evidence of the jerk which the car gave indicated negligence in its operation, and, in the absence of other evidence, was sufficient to carry the case to the jury. The fact that the car gave a lurch or a jerk sufficiently appeared from the testimony, and the use of that term was not mere characterization. In view of the proof adduced and the circumstances proved, there was sufficient to call upon defendant to explain.' So, also, where the jerk was so violent as to cause the plaintiff to lose her grip on an iron support in a trolley car and throw her against the side of the car and on to the floor. (Bergman v. Brooklyn & Queens Transit Corp., 163 Misc. 762, 297 N.Y.S. 727); also where the plaintiff was thrown by a sudden movement of the car so violent as to break his hold and throw him out of the platform. (Futuronsky v. Nassau R. R. Co., supra; see also Gardner v. Central Park R. R. Co., supra; Trudell v. Rapid Transit Corp., supra). The same ruling has been made in a case where the force of the sudden stop was violent enough to throw a seated passenger from his seat and cause the plaintiff severe traumatic injuries, two broken ribs and severe concussion, (Lombardi v. New York State Railways, 224 App.Div. 438, 231 N.Y.S. 306); and of such violence as to lift the plaintiff bodily from his seat and bring him down with such force as to cause the injuries complained of (Schulz v. Finn, 273 App.Div. 780, 75 N.Y.S.2d 15).

Cases cited by the defendant Scarlett v. Lehman, Sup.App.T., 122 N.Y.S.2d 856; Kokofsky v. City of New York, 297 N.Y. 553, 74 N.E.2d 478; Mintz v. International Railway Company, 227 N.Y. 197, 124 N.E. 893; Lichtenstein v. City of N. Y., 270 App.Div. 925, 62 N.Y.S.2d 841 do not apply. They are all cases where there was proof of an emergency which required the driver to make the sudden stop. The proof destroyed the inference of negligence and plaintiff failed to sustain his burden of proof. (See for discussion of these cases, Desmond v. Doyle, 5 Misc.2d 490, 160 N.Y.S.2d 738).

The question arises whether the rule of res ipsa loquitur may...