Opinion
June 28, 1949.
Plaintiff, who was 51 years of age and weighed 260 pounds, was injured when, as a passenger, she stumbled over a suitcase while getting off from one of the defendant's buses. The suitcase was left by some unknown person in a corner of the small vestibule in the front end of the bus and near to and at the right-hand side of the operator. In stumbling she fell and sustained various minor injuries and also a fracture of the humerus bone of her left shoulder. She had a recovery at the hands of the jury in the sum of $15,000. Upon the evidence the jury could have found that the defendant's operator of the bus knew or, in the exercise of reasonable care, should have known, of the presence of the suitcase nearby him in the narrow vestibule of the bus which was designed and used for egress and ingress of passengers, and a question of fact arose as to defendant's negligence in failing to anticipate that such an obstruction, or the possibility of its becoming an obstruction, might result in injury to a passenger. The vestibule was not designed for the storage of luggage. The evidence sustains the jury's finding as to defendant's negligence. Aside from the evidently simple fracture aforesaid, plaintiff's other injuries were of a minor nature consisting of superficial bruises and contusions. There was no evidence that any of her injuries caused her diabetic condition and while the discovery she was a diabetic gave further anxiety because of her injuries, nothing further untoward regarding it is shown to have eventuated as a result of her injuries. The evidence indicates that she made an uneventful recovery from the fracture. Her total medical and hospital expenses amounted to less than $300 and no diminution in the rate of her earnings as a result of her injuries was proven. The medical testimony as to the continuance of her pain and aches or as to any permanent effects resulting from her injuries was not established by competent medical proof. In answer to improperly phrased questions as to his opinion on those matters, to which defendant duly excepted to the overruling of its objections, plaintiff's doctor was allowed to express his opinion in terms of sheer possibility. Plaintiff's counsel, in his summation to the jury, asserted and argued that plaintiff's injuries caused or reactivated her diabetic condition in the absence of any evidence to that effect and this, along with the incompetently expressed opinion of the doctor, we cannot regard but as having been highly prejudicial and that in part at least it accounted for what we regard as an excessive award of damages. In the action of Mary May Fuller v. Hudson Transportation Co., Inc., judgment and order reversed on the law and facts and a new trial granted, with costs to abide the event, unless within ten days after service of notice of the entry of an order hereon, plaintiff stipulates for the reduction of the verdict to the sum of $5,000, in which event the judgment as so reduced is affirmed, without costs in this court. In the action of Ray Ellis Fuller v. Hudson Transportation Co., Inc., judgment and order affirmed, with costs. Foster, P.J., Brewster, Deyo, Santry and Bergan, JJ., concur.