In my opinion, the trial court erred in rulings that systematically excluded evidence with regard to the tilt of the bus resulting from the incline on which the bus was parked at the time plaintiff sustained her injuries. On that limited ground I join the court to reverse the judgment entered in favor of defendant, and to remand for a new trial.
The trial court apparently believed that evidence with regard to the incline represented an effort to advance a new theory of liability not set forth in plaintiffs’ bill of particulars, and failed to appreciate that such evidence was relevant as a circumstance to be considered by the jury in determining whether or not the bus driver had exercised reasonable care with regard to the accumulation of slush on the bus steps. I acknowledge that it seems to me doubtful that the exclusion of the evidence with regard to the incline affected the jury *280verdict since the plaintiff herself described it as "a little bit of an incline” in testimony that was stricken, on defendant’s motion, from the record. However, other proffered testimony which the jury would have had a right to credit, including a description of the incline in the police officer’s accident report, described the incline and its effect in more emphatic terms.
I also think it was an error to redact from the bus dispatcher’s report his observation of slush on the steps, although I do not believe that, by itself, this error could have affected the outcome of the trial since it was duplicative of other testimony that was admitted.
As to that part of the trial court’s instructions to the jury in which it explained defendant’s duty to exercise reasonable care, and went on to state that liability could here attach only if the conditions created by the snow or slush were "unusually dangerous”, the issue presented is of sufficient interest to merit further discussion. Preliminarily, I note that plaintiff did not object to this part of the charge, and the issue could be appropriately reached by this court only if we were to deem it "fundamental error”, a doctrine that has always seemed to me a useful one, but one requiring caution in its application. In my opinion, this is an inappropriate case in which to apply this doctrine.
The facts in this case presented the trial court with an unusually difficult problem in terms of instructing the jury. I agree that the trial court erred in adapting to the circumstances presented PJI 2:225A, which states the municipality’s standard of care for keeping its streets and sidewalks reasonably clear of snow and ice. Although the charge, as adapted, accurately set forth the defendant’s duty to exercise reasonable care and diligence, it was at best irrelevant, and to some extent misleading, to impose on plaintiff the burden of establishing that the condition of the bus steps upon which she fell must be "different in character from the condition ordinarily prevailing during winter in that locality”. In addition, the repetitive use of the terms "unusual danger” and "unusually dangerous condition” overstated to some extent plaintiff’s burden.
The court may well be correct in its judgment that the standard general charge set forth in PJI 2:161 without any further guidance was the preferred approach to the situation presented. It seems to me, however, that the unusual circumstances of this case would have justified a trial court in *281accompanying that instruction with some additional guidance to the jury. The unusual problem arises from the circumstance that while the tracking of any snow or slush on to the bus steps by passengers entering and leaving the bus makes such steps less safe than usual, it is doubtful that a bus driver may reasonably be required to leave his usual position to clean the bus steps each time some snow or slush is tracked on to them. Although a jury might reasonably be expected to have understood this reality without any specific comment by the court, I do not see how it would have been error for the court to have so instructed the jury. Moreover, as I evaluate the situation, liability could attach under the described circumstances only if the tracking of snow and slush on to the bus steps had created a condition of danger that should have been appreciated by the bus driver, and a Trial Judge would have been justified in so instructing the jury. This, in fact, was essentially the view taken by the plaintiffs’ lawyer in summation, the central theme of which was that the buildup of snow had created a dangerous condition.
I find instructive the opinion of the Court of Appeals in Palmer v Pennsylvania Co. (111 NY 488), a case in which a passenger had fallen as a result of snow which had accumulated on the platform of a railroad car during the course of a railroad trip. No doubt there are practical differences between the problem presented to railroad employees by snow that fell during part of an uncompleted railroad trip in 1888, and that presented to the bus driver by the slush tracked on to bus steps by passengers during the course of the bus trip with which we are concerned. Recognizing the differences, the issue presented in the two cases seems to me sufficiently close to make the opinion of the Court of Appeals in Palmer (supra) helpful in two respects. First, it underlines the difficulty in formulating a general principle of law in this area, a difficulty which necessarily complicates the problem of instructing the jury. Second, it suggests an approach to the question that is of value in the situation here presented.
The Court of Appeals said (supra, pp 494-495): "It is quite impossible to lay down any general rule applicable to all circumstances, in respect to the degree of care to be observed by a railroad corporation in the removal of ice or snow from its cars, and each case must, therefore, be generally determined by its own peculiar circumstances; but it is safe to say that such corporations should not be held responsible for the dangers produced by the elements until they have assumed a *282dangerous form, and they have had a reasonable opportunity to remove their effects.”
I further disagree with the comment in the court’s opinion that it was error for the Trial Judge not to charge that a common carrier "owes a duty to its passengers to provide a reasonably safe place to alight from its vehicle”. Apart from the circumstance that this was first requested by plaintiffs’ counsel after the charge was given and at a time when its statement would have given it undue importance, as observed by defense counsel, the facts here, on any realistic view, did not present an issue with regard to the obligation embraced in the requested instruction. Nor do I agree that it was error to refuse the additional instruction alluded to in the memorandum opinion since the court’s instruction clearly included the essential aspects of that charge, the only issues raised by the trial court’s instruction being matters as to which plaintiffs’ counsel interposed no objection.
The cautious references in the court’s opinion to the majority opinion in Lewis v Metropolitan Transp. Auth. (99 AD2d 246, affd 64 NY2d 670) invites further discussion because I think language in the Lewis opinion has some potential of becoming the source of confusion and misunderstanding. The suggestion in Lewis (supra) that a common carrier may owe a higher duty of care than ordinary and reasonable was background dicta in a decision that in fact evaluated the carrier’s responsibility in accordance with the usual standard of reasonable care. It is apparent that in a scholarly review of the authorities the writer had failed to recall (understandably, since the issue was not critical to the determination of the case) that the principle imposing a higher degree of care on common carriers set forth in the older decisions (although never explicitly overruled) had generally come to be understood as inconsistent with the more modern view of liability in negligence cases. This general understanding was so clear that the authors of PJI 2:225A did not hesitate to depart from the older approach, clearly stating in the accompanying commentary that they had done so deliberately, and giving their reasons for so doing.
It is safe to say that in the intervening years since publication of the Pattern Jury Instructions hundreds of cases have been tried in which the jury was instructed in accordance with PJI 2:225A, and that scores of appeals arising out of such cases have been determined without the slightest intimation that this charge did not accurately set forth the controlling *283law. In light of this history, it is clear that the affirmance by the Court of Appeals in Lewis (supra, p 671) "for reasons stated”, was intended to refer to those reasons which were relevant to the decision in Lewis and were not intended as an endorsement of background dicta that inadvertently departed from the uniform understanding of the applicable standard of care. It is extremely unlikely that the Court of Appeals could have intended its affirmance in Lewis to be a vehicle for signalling doubt as to the correctness of a standard of responsibility that had become universally accepted in the courts of this State for many years, including all of the appellate courts that had reviewed appeals in common carrier cases.
Accordingly, on the limited ground indicated above, the judgment of the Supreme Court, Bronx County (Irma Vidal Santaella, J.), entered on June 27, 1984, which, following a jury trial, found in favor of defendant Manhattan and Bronx Surface Transit Operating Authority, should be reversed, and the matter remanded for a new trial.
Murphy, P. J., Fein and Ellerin, JJ., concur with Milonas, J.; Sandler, J., concurs in an opinion.
Judgment, Supreme Court, Bronx County, entered on June 27, 1984, unanimously reversed, on the law, and the matter remanded for a new trial.