Keating v. Arthur Treacher's Fish & Chips ( 1980 )

In an action to recover damages for personal injuries, etc., plaintiffs appeal from an amended judgment of the Supreme Court, Suffolk County, dated March 11, 1980, which was in favor of the defendants, upon a jury verdict. The notice of appeal dated May 2, 1978 is deemed a premature notice of appeal from the amended judgment. Amended judgment affirmed, without costs or disbursements. Trial Term did not err in failing to charge the doctrine of "last clear chance”, since there was insufficient evidence to indicate that either the supervisor of the March of Dimes walk-a-thon or the driver of the Treacher double decker bus leading the walk failed to take any possible action once the plaintiff, a volunteer participant, stumbled in front of the bus. Regardless of the wisdom of using such a vehicle, as all participants were repeatedly instructed not to march in front of it, plaintiff’s own contributory negligence bars any recovery. Titone, J. P., Cohalan, Martuscello and O’Connor, JJ., concur.