Opinion
June 9, 1941.
In an action by plaintiff-wife to recover damages for personal injuries and by her husband for loss of consortium and expenses, judgment dismissing the complaint at the close of plaintiffs' case reversed on the law and a new trial granted, with costs to appellants to abide the event. The plaintiff-wife, a prospective passenger on the respondent's bus, while standing on the sidewalk at a place designated "Bus stop" signaled the respondent's driver of her intention to board the bus. On other occasions the buses had pulled up to the curb. The driver, instead of pulling in to the curb, stopped his bus in the street, ten feet from the curb, and opened the doors of the bus, thus impliedly inviting the prospective passenger to walk out and board the bus in the street. The roadway between the bus and the curb was covered with ice, smooth in some places and rough and bumpy in other places. While attempting to reach the bus the plaintiff-wife fell and suffered severe injuries. We hold that a question of fact as to the exercise of due care upon the part of the operator of the bus was presented. (Traffic Regulations, Police Department, City of New York, § 77, subd. 3, ¶ (a); Lewis v. Brooklyn Bus Corp., 252 App. Div. 875; Forgion v. Travelers Ins. Co., 260 id. 1031.) The question of the degree of care to be exercised by the prospective passenger under the circumstances was also for the jury. Lazansky, P.J., Carswell, Johnston, Taylor and Close, JJ., concur.