Burger v. Fifth Avenue Coach Co. , 225 N.Y.S. 627 ( 1927 )

Proskauer, J.

Plaintiffs’ intestate was killed by contact with the defendant’s coach at Seventh avenue and One Hundred and Forty-eighth street in the city of New York. Seventh avenue is there divided by a park strip. At the time of the accident the western or south-bound roadway was impassable because workmen were removing the asphalt pavement, melting it by use of a blower; southerly traffic was thus diverted from the westerly to the eastern or northbound roadway. Defendant’s coach was proceeding southerly on this course and was about to recross on One Hundred and Forty-eighth street to the west roadway when the plaintiffs’ intestate, who was standing on or near the easterly coping of the park strip, was injured. The plaintiffs’ claim was that the intestate was struck by the overhanging part of the coach, which was negligently and without warning driven too close to the intestate. The defendant’s claim was that just as the coach turned around the island platform, a sudden blast of heat from the blower caused the intestate to step suddenly from the island platform and project himself against the side of the coach.

The issue thus raised was for the jury. We are constrained to reverse the judgment, however, because of error in the charge. At the request of the defendant’s counsel the court charged that “ unless the plaintiff has established the fact that the bus struck this boy while he .was on the island platform, the plaintiff has failed to prove the negligence of the defendant.” During its deliberations the jury requested and secured the rereading of this portion of the charge, which clearly influenced the jury in reaching a verdict for the defendant. The plaintiffs’ claim should not have been so closely limited. Even if the decedent was standing on the roadway near the island platform, instead of upon the island platform, the defendant’s driver still owed him a duty. One of the plaintiffs’ witnesses was uncertain whether the decedent was actually standing on the island platform or on the roadway near it. It was for the jury to say whether the defendant’s negligence was responsible for the decedent’s death even though he was not upon the platform itself.

For these reasons the judgment appealed from should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Martin and O’Malley, JJ., concur; Dowling, P. J., and Merrell, J., dissent.