Nieves v. Manhattan & Bronx Surface Transit Operating Authority , 297 N.Y.S.2d 743 ( 1969 )

Stevens, P. J.

This is an action for damages for personal injuries sustained October 5, 1965, when the bus in which plaintiff was a passenger was involved in a collision with a private car owned and operated by defendant Newsome.

The plaintiffs have failed to establish any actionable negligence on the part of the appellant. Actionable negligence involves a duty owing to the injured party, a breach of such duty and injuries proximately resulting therefrom. A common carrier of passengers is not an- insurer of the safety of its passengers though it is bound to use a high degree of care for their safety. The testimony adduced on behalf of the plaintiffs was chiefly that of the operator of the bus. He testified that the bus involved was traveling its regular route under the tracks of the elevated structure at a speed of approximately 10 miles per hour when the car of defendant Newsome, which had been traveling in the right or outer lane, suddenly cut into or entered upon the path of the bus and was struck on the left front fender. The driver testified further that he first saw the car as it was coming under the elevated structure -four to six feet distant and about one second elapsed prior to the impact. He braked the bus and after the impact swerved to the left. The bus traveled about 20 feet after the impact.

The only other evidence as to how the accident occurred was given by a friend of plaintiff Nieves who accompanied her on the evening in question. This evidence was contained in a statement given shortly after the accident and was to the effect that a red car had run into the middle of the right side of the bus. Such statement was used for impeaching purposes only.

There is no doubt that the sudden unexpected swerving of -the Newsome car into the path of the bus called for immediate action by the driver of the bus. On the evidence in the record the bus driver could not reasonably have been expected to anticipate the sudden turn of the Newsome car, hence it was such act by Newsome which proximately caused the accident (see Wolfson v. Darnell, 15 A D 2d 516, mod. 12 N Y 2d 819; Braver v. Litterilla, 281 App. Div. 841). From the testimony there was no condition existing which indicated or could reasonably lead appellant’s driver to believe that Newsome was about to make the sudden turn, nor is there any evidence which could support a conclusion that he used other than what seemed to be the best judgment under the circumstances. Usually it is a question of fact for the jury as to whether an injury was caused by error of judgment in an emergency or by a negligent act creating the emergency (Raolaslovic v. New York Cent. R. R. Co., 245 N. Y. 91) and a jury has a right to accept or reject testimony as it wills. When, however, as here, the only evidence introduced clearly excludes negligence on the part of appellant, there is no basis upon which liability can be predicated, and no foundation or ground exists which warrants or supports rejection of the testimony. (See Meyer v. Whisnant, 282 App. Div. 930, affd. 307 N. Y. 369, mot. for rearg. den. 307 N. Y. 911.) A verdict cannot rest upon pure speculation or a testimonial rejection without basis where no other or contradicting evidence is offered (cf. Hull v. Littauer, 162 N. Y. 569).

Judgment entered April 10, 1968, in favor of plaintiffs-respondents, should be reversed on the law, the judgment vacated, and the complaint dismissed as to appellant, with costs.