Pickert v. Rochester Transit Corp.

Judgment and order reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: We feel that under the circumstances of this ease, the court erred in charging the jury that the defendant was called upon to “ exercise the highest degree of care in the operation of the bus”. (See Glick v. New York R. T. Corp., 259 App. Div. 1044; Taddeo v. Tilton, 248 App. Div. 290; O’Brien v. New York Rys. Corp., 185 App. Div. 867; Kelly v. International Ry. Co., 214 App. Div. 652.) The court also erred in charging the jury, without qualification, that in determining the pecuniary loss sustained by reason of the death of plaintiff’s intestate, it might take into consideration “ the earnings of the decedent per annum, multiplied by the number of years of life, and your verdict will be the pecuniary loss to the widow.” This was followed by the statement that the deceased’s expectancy was 38.81 years. Moreover, the finding of the jury that the defendant was negligent in the manner of the operation of the bus or that decedent ever boarded or attempted to board the bus, is against the weight of the evidence. The evidence in the record would seem to indicate that plaintiff’s intestate fell and sustained the injuries alleged, by reason of his then impaired physical condition rather than by reason of any act of the defendant. All concur. (The judgment is for plaintiff in a bus-line negligence action. The order denies a motion for a new trial.) Present — Taylor P. J., McCurn, Love, Vaughan and Kimball, JJ.