Opinion
June 29, 1967
In a negligence action to recover damages for personal injuries, plaintiff appeals, by leave of this court, from an order of the Appellate Term, Second Judicial Department, dated July 1, 1966, which (1) reversed a judgment of the Civil Court of the City of New York, Queens County, entered October 22, 1964, in plaintiff's favor after a nonjury trial and (2) dismissed the complaint. Order modified, on the law and facts, by (1) striking out the decretal provisions therein that the complaint is dismissed and that defendant is granted costs and (2) substituting therefor a decretal provision granting a new trial. As so modified, order affirmed, with costs to plaintiff to abide the event. Because the Appellate Term dismissed the complaint, plaintiff is entitled to have the proof read in the light most favorable to her and to have the benefit of the reasonable inferences to be drawn from the proof ( Carter v. Castle Elec. Contr. Co., 26 A.D.2d 83; African Metals Corp. v. Bullowa, 288 N.Y. 78, 81). The record is susceptible of a finding that plaintiff, a passenger in defendant's bus, and when she was in the washroom of the bus, suffered a fracture of the coccyx as a result of receiving a "terrible jolt" when the bus passed over a construction site, causing her to lose her balance. Her friend, also a passenger, confirmed the occurrence of the jolt when she testified that she had to hold on to her seat to keep from falling. The friend also stated that several of the passengers shouted to the driver to stop the bus. From the foregoing findings, the inference could be drawn that the driver failed to slow the bus when he drove over the construction site. In light of the suggestion in Pfaffenbach v. White Plains Express Corp. ( 17 N.Y.2d 132, 136) that "there should be more legal flexibility on what is negligence as applied to the control of moving vehicles", it is our opinion that the facts at bar are sufficient to establish a prima facie case of negligence (see, also, Carter v. Castle Elec. Contr. Co., supra; Miller v. Inter City Transp. Co., 31 Misc.2d 777; Desmond v. Doyle, 5 Misc.2d 490). In our opinion, the authorities cited by respondent ( Quinn v. Colonial Motor Coach Corp., 266 N.Y. 584; Taylor v. Westchester St. Transp. Co., 276 App. Div. 874) have no application at bar. In both Quinn and Taylor the mere characterization of a witness that the subject vehicle "lurched violently" or that it "snatched forward" was held insufficient to warrant the submission of the question of the defendant's negligence to the jury. At bar, plaintiff's friend confirmed the occurrence of the jolt and plaintiff's fall. In view of the foregoing, and in the interests of justice, defendant should be given the opportunity of coming forward with proof as to why the accident occurred. Finally, it was prejudicial error to allow plaintiff's doctor to testify, over defendant's objection, to matters shown on X rays which the doctor had taken but which were not introduced into evidence ( Gursslin v. Helenboldt, 259 App. Div. 1064; Cellamare v. Third Ave. Tr. Corp., 273 App. Div. 260). Christ, Acting P.J., Rabin, Benjamin, Munder and Nolan, JJ., concur.