Raudzens v. New York City Transit Authority

In a negligence action to recover damages for personal injuries, etc., defendant New York City Transit Authority appeals from an order of the Supreme Court, Queens County (Vitale, J.), dated October 24,1980, which (1) granted plaintiffs’ motion to set aside a jury verdict in favor of the Transit Authority on the ground that it was contrary to the weight of the evidence, and (2) directed a new trial. Order affirmed, without costs or disbursements. This action arose from an accident in which a bus ran over a pedestrian. Plaintiffs’ theory at the bifurcated trial was that Aiga Raudzens, on leaving the sidewalk to cross the street, stumbled into the side of the moving bus and fell onto the street behind the bus. When the driver heard the thump, he stopped the bus, and since its front end was projecting into the intersection, he backed it up, over Aiga’s legs. Under defendant New York City Transit Authority’s (defendant) theory, Aiga tripped and fell between the rear door and rear wheels of the bus and was run over as it was traveling forward. It is apparent, then, that resolution of the case turned on whether the bus was proceeding forward or backward when it ran over Aiga. The undisputed facts establish that the bus was moving at about 8 to 10 miles per hour at the time the infant plaintiff fell against it, the bus was 6 to 24 inches away from an eight-inch high curb, and the ground clearance of the bus was 15 inches. Although the bus driver denied reversing the bus, one witness asserted that the bus stopped in the intersection and then went back approximately 5 to 6 feet. Two bus passengers testified that there was nothing unusual about the operation of the bus, but neither specifically denied that the bus went backwards. Two expert witnesses produced by the plaintiffs testified 723 that Aiga’s injuries could only have occurred if the bus backed up. The first of these experts, a civil engineer, declared that the infant plaintiff could not have fit underneath the side of the bus considering its ground clearance, its movement and the space between it and the curb. The second witness, a forensic pathologist, relied on the nature of the injuries to support plaintiffs’ theory as to how the accident happened. According to the pathologist, if Aiga fell as defendant claims, she would have been at an angle to the bus, with part of her body on the curb. The nature of the injuries, however, is consistent with Aiga lying flat on her stomach with her head toward the middle of the street. On this appeal from the trial court’s order setting aside the jury’s verdict in favor of the defendant, the question is whether the evidence so preponderated in favor of the plaintiffs that the verdict could not have been reached on any fair interpretation of the evidence (Yacano v De Fayette, 67 AD2d 1059; Pertofsky vDrucks, 16 AD2d 690). After viewing the evidence in the light most favorable to the defendant, we can discern no fair interpretation of the evidence in this record which would support defendant’s version of the occurrence, and we do not find the trial court’s exercise of discretion unreasonable (see Pickard v Koenigstreuter, 70 AD2d 693). As the trial court noted, the bus driver’s testimony is contradicted by the physical facts. (Since the cause of the injuries seems intertwined with their nature and there is a question of amnesia as well, the retrial should encompass the issues of both liability and damages [see Keating v Eng, 50 AD2d 898; Naumann v Richardson, 76 AD2d 917].) Accordingly, there should be an affirmance. Lazer, J. P., Rabin and Hargett, JJ., concur.