Lesser v. Manhattan & Bronx Surface Transit Operating Authority

Rosenberger, J.

(dissenting). I would affirm the judgment of the Supreme Court which, upon a jury verdict, found defendant 90% responsible for plaintiff’s injuries. Neither the introduction of defendant’s own training manual nor the court’s *358charge on constructive notice deprived defendant of a fair trial.

The facts are not in dispute. The driver of the bus, James Scott, admitted that he made no effort whatsoever to remove the snow and slush which had accumulated on the front steps of his bus from the time he began his run at 8:00 a.m. until the time of the accident at 2:30 p.m. even though he took a break at each end of each of his west side to east side and east side to west side runs. Nor did he advise the bus company or the dispatcher on his route of the condition of the bus steps, which he could see from an overhead mirror. Although Scott testified that he always warns his passengers to watch their step before getting off the bus, he also stated that he had no recollection of the events of February 7, 1986. Both plaintiff and Police Officer Cynthia Kleppel, who descended the steps of the bus just prior to plaintiff, testified that the driver never advised them to be careful departing.

The majority objects to the introduction into evidence of certain portions of defendant’s training manual which instruct operators to give special attention to potential safety hazards during snowstorms. The manual advises operators to warn passengers to watch their step and to make every effort to keep the steps clear of accumulated snow. The majority claims that these rules impose a standard of care "which transcends the area of reasonable care” and that the court’s charge improperly permitted the jury to consider the manual as the applicable standard of care.

In my view, the majority places undue emphasis on the admission of the cited provisions of the manual and fails to consider the court’s charge as a whole. Liability in this case was not predicated solely on a violation of defendant’s rules as contained in its manual (cf., Crosland v New York City Tr. Auth., 68 NY2d 165; Caputo v New York City Tr. Auth., 86 AD2d 883). The testimony of plaintiff’s expert as well as that of defendant’s expert as to the standards of practice and the custom and usage in the transit industry was in conformity with the instruction provided in defendant’s manual and was pertinent to an assessment of the duty of care owed by a common carrier during a snowstorm. Such testimony was properly admitted to aid the jury in determining the reasonableness of defendant’s conduct (Trimarco v Klein, 56 NY2d 98; Storm v New York Tel. Co., 270 NY 103; Shannahan v Empire Eng’g Corp., 204 NY 543; Galarza v Pacific Steel Boiler Corp., 147 AD2d 527). Defendant’s expert agreed that a driver *359who fails to take added precautions during a snowstorm, by at least warning passengers of an accumulation of snow and slush on the steps, deviates from acceptable standards of the industry.

Although the court’s charge with regard to the introduction of the manual and its relation to the acceptable standard of care was somewhat confusing, the charge, when viewed as a whole, adequately instructed the jury on the applicable principles of law. The court specifically admonished the jury to disregard defendant’s rules if they found them to be stricter than the required standard of care (see, Danbois v New York Cent. R. R. Co., 12 NY2d 234) and then provided a detailed and correct instruction on the duty of care owed by common carriers (PJI 2:161; Bracco v MABSTOA, 117 AD2d 273).

Nor did the court’s charge on constructive knowledge of a dangerous condition deprive defendant of a fair trial. The majority claims that reversal is mandated by the court’s failure to instruct the jury to consider whether the dangerous condition was visible and apparent to defendant and whether it existed for a sufficient length of time prior to the accident to enable defendant to remedy it (see, Gordon v American Museum of Natural History, 67 NY2d 836). In Gordon, however, there was no evidence that anyone observed the piece of paper upon which plaintiff fell prior to the accident nor was there any indication that the paper had been present for some period of time. In the instant case, it had been snowing steadily for 8V2 hours and passengers had been tracking snow onto the steps as they got on and off the bus since the driver put the bus in operation at 8:00 a.m. The bus was equipped with a mirror which enabled the driver to observe the condition of the steps. Moreover, the record reveals that a dispatcher was present on Scott’s cross-town route and that Scott took a break after each run affording him the opportunity to take reasonable measures to provide for the safety of his passengers. Since it is undisputed that the dangerous condition was visible and apparent and existed for a sufficient period of time prior to the accident to permit defendant’s employees to remedy it, the court’s charge did not deprive defendant of a fair trial (see, McGuire v Interborough R. T. Co., 104 App Div 105).

Sullivan, J. P., and Carro, J., concur with Smith, J.; Milonas and Rosenberger, JJ., dissent in a separate opinion by Rosenberger, J.

*360Judgment, Supreme Court, New York County, entered on or about April 21, 1989, reversed, on the law and the facts, and the case remanded for a new trial, without costs and without disbursements.