Travessi v Command Bus Co., Inc.

[*1] Travessi v Command Bus Co., Inc. 2005 NYSlipOp 50449(U) Decided on March 31, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 31, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
2004-285 K C

NERRY TRAVESSI, Appellant,

against

COMMAND BUS CO., INC., Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered October 28, 2003, which denied her motion to set aside the jury verdict in favor of defendant on the issue of liability.

Order unanimously reversed without costs, plaintiff's motion to set aside the jury verdict on the issue of liability granted, and a new trial ordered.

Plaintiff brought the instant action as a result of an incident which occurred when she, a passenger on defendant's express bus, was thrown from her seat on the bus, and suffered injuries as a result. Following a trial on the issue of liability, at which she claimed that the bus operator was negligent in driving over speed bumps, and at which the bus operator did not testify, the jury returned a verdict in favor of defendant, finding that defendant was negligent, but that its negligence was not a substantial factor in causing the accident. Plaintiff's subsequent motion to set aside the jury verdict as against the weight of the evidence was denied. We reverse and order a new trial.

A jury verdict should not be set aside as against the weight of the evidence unless the verdict could not have been reached upon any fair interpretation of the evidence (see Nicastro v Park, 113 AD2d 129 [1985]). We find that plaintiff's proof at trial, consisting of her testimony and the testimony of another passenger injured in the same incident, provided objective evidence of the unusual movement of the bus "sufficient to establish an inference that the [movement] was [*2]extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of defendant" (see Urquhart v New York City Tr. Auth., 85 NY2d 828, 830 [1995] [plaintiff's proof at trial "provided objective evidence of the force of the stop"]; Rountree v Manhattan & Bronx Surface Tr. Operating Auth., 261 AD2d 324 [1999]; Harris v Manhattan & Bronx Surface Tr. Operating Auth., 138 AD2d 56 [1988]; see also Taylor v Westchester St. Transp. Co., 276 App Div 874 [1949]).

Under the facts of this case, the issues of defendant's negligence and causation were "so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause" (Rubin v Pecoraro, 141 AD2d 525, 527 [1988]). Since the verdict was not supported by a fair interpretation of the evidence, the court below should have granted plaintiff's motion to set aside the liability verdict as against the weight of the evidence, and ordered a new trial. Accordingly, this matter is remitted to the court below for a new trial on the issue of liability.
Decision Date: March 31, 2005