Stanley v. Surface Transit, Inc.

Per Curiam.

This is an action brought to recover damages for serious and severe injuries sustained by the infant plaintiff on May 20, 1958, as a result of an accident involving a bus owned by defendant and then operated by one of its employees.

The infant plaintiff, age 10 years 8 months at the time of the accident, testified he was running away from a group of boys, when half-way across the street he heard a Mr. Carpenter call a warning, turned to see who was calling, took a few steps backward and was struck by the bus which, after the accident, had to be backed up off the infant’s leg. There is no evidence that he backed into the bus.

The driver of the bus in testifying estimated his speed at 10 to 12 miles per hour, slower than his normal speed, though the speedometer on the bus was not working. The driver testified he saw the boy run from the left side across the street directly toward the bus and that he ran into the side of the bus. He then applied the brakes and stopped the bus, but did not go near the infant after the accident. The driver testified he obtained the names of three or four witnesses to the accident. None, however, were produced and only the driver testified for the defendant. Admittedly no horn was blown or warning sounded.

The plaintiff offered evidence that the driver was going very fast, in what the driver from his own testimony recognized as a congested neighborhood which included many children. There was testimony by a police officer that a sudden stop would have left friction or skid marks and none were found at the scene. There was also testimony that the operator, when questioned by an officer, stated, in substance, he did not know what hap-pend, he heard a thud, people screaming, and he stopped. The driver had to be asked to back up the bus to take the wheel off the leg of the infant. Certain discrepancies in the testimony of the driver between his present testimony and that given at the former tidal were called to the driver’s attention. The jury could not fail to note such discrepancies, particularly when the driver characterized such former testimony as true and in effect adopted it as his present testimony.

The record does not support a determination that there was a repetition by plaintiffs’ counsel of the prejudicial error which led to reversal of the earlier judgment (20 A D 2d 854). It is true that at the conclusion of the presentation of the evidence, and before summation, defendant did request the court to instruct the jury the testimony of Officer Mebert with respect to his conversation with the driver should be considered only on the issue of credibility. However, on the following day after summations were made and the charge given, the request was not repeated. Evidently defendant felt the court had sufficiently covered the issue in its general charge with respect to credibility.

The trial court submitted the issues of negligence and contributory negligence to the jury under a proper charge to which no exception was taken. The jury on the whole evidence could properly resolve the issue of liability as it did and we see no reason to disturb their finding. In light of the nature and extent of the injuries and the unfavorable prognosis for the future, the award is not found to be so clearly excessive so as to warrant reduction.

The judgment appealed from should be affirmed, with costs and disbursements to respondents.