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McLean v. Triboro Coach Corp.

Court of Appeals of the State of New York
Nov 30, 1950
96 N.E.2d 83 (N.Y. 1950)

Summary

In McLean v. Triboro Coach Corp., 302 N.Y. 49, 51, 96 N.E.2d 83 (1950), Judge Fuld wrote that negligence generally is defined as the failure to use "the care which the law's reasonably prudent man should use under the circumstances of a particular case.

Summary of this case from Beard v. Norwegian Caribbean Lines

Opinion

Argued October 6, 1950

Decided November 30, 1950

Appeal from the Supreme Court, Appellate Division, Second Department, CUFF, J.

Abraham L. Shapiro and Abraham Schlissel for appellants.

Philip J. O'Brien, William C. Morris and John G. Coleman for respondent.


As plaintiff, an elderly lady, was alighting from one of defendant's buses which had stopped to discharge her and other passengers, the driver closed the door before she had cleared it. As a result, one of her legs was caught and held fast by the door. The driver started the bus and plaintiff was pulled along for some feet, until, when the bus was braked to a halt and the door was opened, she fell to the ground and suffered serious injuries. The jury returned a verdict for plaintiff and the Appellate Division affirmed the resulting judgment. We are asked to reverse that judgment because, in submitting the case to the jury, the trial judge instructed that defendants owed plaintiff the duty of exercising " a very high degree of care in transporting her, in letting her off, and in seeing that she is clear of anything that might bring injury to her." (Italics supplied.)

Negligence is defined, broadly and generally speaking, as the failure to employ reasonable care — the care which the law's reasonably prudent man should use under the circumstances of a particular case. That being so, it may well be asked whether it is ever practicable for one to use more care than one reasonably can; whether it is ever reasonable for one to use less; or whether, in sum, there can ever be more than one degree of care. (See Pollock on Torts [14th ed.], pp. 352-353; Green, High Care and Gross Negligence, 23 Ill. L. Rev. 4; cf. O'Brien v. New York Rys. Co., 185 App. Div. 867, passim.) And, indeed, it has been said that to grade care into degrees, to differentiate between various degrees of care, is "unscientific", "most difficult of application", and "perplexing alike to bench and bar." (See, e.g., O'Brien v. New York Rys. Co., supra, 185 App. Div. 867, 870, 873.) All of this suggests a re-examination of those decisions wherein this court has upheld instructions by trial judges to the effect that a common carrier does, in certain situations, owe a "high", a "very high" or the "highest" degree of care in transporting its passengers. (See, e.g., Stierle v. Union Ry. Co., 156 N.Y. 684, denying reargument 156 N.Y. 70; Palmer v. Delaware Hudson Canal Co., 120 N.Y. 170; Maverick v. Eighth Ave. R.R. Co., 36 N.Y. 378; Keegan v. Third Ave. R.R. Co., 34 App. Div. 297, affd. 165 N.Y. 622.)

We are not, however, here called upon to embark on such a study, and we express no opinion upon the subject, since, in any event, defendants could not have been harmed by the charge in question.

Considered in the abstract, to announce a requirement that "a very high degree of care" was owed, implies the existence of a burden more onerous than the exercise of "reasonable care." However, when viewed and appraised in connection with the record before us, the instruction could not have influenced the jurors or affected their conclusion. Having in mind the facts adduced, the situation presented, the jury's finding, implicit in its determination, that the door was shut before plaintiff had cleared it and that the bus was started before she had alighted, established a lack of care, no matter how assayed or evaluated. Consequently, since the very happening of the accident necessarily demonstrated that defendants failed to use any care whatsoever — since, in other words, the verdict of the jury necessarily imported the absence of any care at all — it follows that defendants could not have been prejudiced by the instruction given. (Cf. Whittacker v. Brooklyn, Queens Co. S.R.R. Co., 110 App. Div. 767, 768; Barbato v. Vollmer, 273 App. Div. 169, 172.)

The judgment of the Appellate Division should be affirmed, with costs.

LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE and FROESSEL, JJ., concur.

Judgment affirmed.


Summaries of

McLean v. Triboro Coach Corp.

Court of Appeals of the State of New York
Nov 30, 1950
96 N.E.2d 83 (N.Y. 1950)

In McLean v. Triboro Coach Corp., 302 N.Y. 49, 51, 96 N.E.2d 83 (1950), Judge Fuld wrote that negligence generally is defined as the failure to use "the care which the law's reasonably prudent man should use under the circumstances of a particular case.

Summary of this case from Beard v. Norwegian Caribbean Lines

In McLean v. Triboro Coach Corp., 302 N.Y. 49, 51, 96 N.E.2d 83 (1950), Judge Fuld wrote that negligence generally is defined as the failure to use "the care which the law's reasonably prudent man should use under the circumstances of a particular case.

Summary of this case from Rainey v. Paquet Cruises, Inc.

In McLean v. Triboro Coach Co., 1950, 302 N.Y. 49, 96 N.E.2d 83, that court, although "expressing no opinion" on the question involved here, expressed sufficient doubt of the propriety of a charge of "high" or "highest" degree of care so as to indicate to us that a charge of reasonable care under the circumstances cannot be considered erroneous under New York law.

Summary of this case from Krasnow v. National Airlines

In McLean v. Triboro Coach Corp., 1950, 302 N.Y. 49, 51, 96 N.E.2d 83, the New York Court of Appeals cast some doubt upon the soundness of the prevailing rule of 'degrees' of care, but explicitly said that the court expressed 'no opinion upon the subject' (302 N.Y. at page 51, 96 N.E.2d at page 84).

Summary of this case from McFadden v. New York, New Havens&sHartford Railroad Co.

In McLean v. Triboro Coach Corp. (302 N.Y. 49, 51), the Court of Appeals, albeit in dicta, addressed the standard of care in negligence imposed upon a common carrier and observed that: "Negligence is defined, broadly and generally speaking, as the failure to employ reasonable care — the care which the law's reasonably prudent man should use under the circumstances of a particular case.

Summary of this case from Adams v. Transit Auth

In McLean v. Triboro Coach Corp. (302 N.Y. 49), the Court of Appeals found no occasion to pass on the propriety of a charge imposing a "high" degree of care in the transportation of passengers.

Summary of this case from Thomas v. Central Greyhound Lines
Case details for

McLean v. Triboro Coach Corp.

Case Details

Full title:ELIZABETH McLEAN, Respondent, v. TRIBORO COACH CORPORATION et al.…

Court:Court of Appeals of the State of New York

Date published: Nov 30, 1950

Citations

96 N.E.2d 83 (N.Y. 1950)
96 N.E.2d 83

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