Driscoll v. New York City Transit Authority

Murphy, J. P. (dissenting in part).

I would modify the judgment on appeal to the extent of crediting Con Ed with the sum of $50,000, the amount of NYCTA’s settlement, and otherwise affirm said judgment and both orders on appeal.

On the instant record and upon the fair and appropriate instructions by the Trial Judge, the jury was fully justified in holding Con Ed liable under the doctrine of "absolute nuisance” for obstructing a public roadway without a requisite license. Accordingly, I see no reason to require plaintiffs to retry this case against said defendant.

Under the circumstances of this case, the Trial Judge’s failure to give effect to section 15-108 of the General Obligations Law did not prejudice or impair Con Ed’s position.

The credible evidence, accepted by the jury, placed the *397blame for the accident, and resulting serious injuries to James Driscoll, on Con Ed. The only factual issue seriously contested at the trial was whether James was skating on the sidewalk or in the gutter of 90th Street before he came in contact with the bus. The evidence adduced to establish fault by NYCTA was sufficiently minimal to prompt Con Ed’s counsel to confess in summation:

"We do not think—Con Edison does not think it has been proved that this bus was responsible for this accident. We think the bus was innocent; so we are not coming to you to say, 'Well we will say it was the bus, not Con Edison.’ Perhaps that would be facile, an easy way out of it for us. We are not doing that.

"You have listened to the facts. There is nothing in this record that would indicate that the bus or the Transit Authority was in any way responsible. That is my view of the record. It does not have to be yours.

"I simply want you to know that is our view of the record.”

Lastly, Officer Horel’s rough sketch, even if erroneously admitted, was clearly recognized as innocuous.

In light of the foregoing, and since the record before us would not support an apportionment against NYCTA in excess of the amount it paid for a release, a reduction of plaintiffs’ claim against Con Ed by $50,000 is the only corrective action which is required in this case.

Birns, Silverman and Lane, JJ., concur with Lupiano, J.; Murphy, J.P., dissents in part in an opinion.

Orders, Supreme Court, New York County, entered on October 10, 1974, and January 14, 1976, affirmed, without costs and without disbursements; and judgment of said court, entered on October 9, 1974, reversed, on the law, and the matter remanded for a new trial, with $60 costs and disbursements of this appeal to abide the event.