Action to recover damages for personal injuries alleged to have been sustained when respondent, a passenger on appellant's bus, about to sit upon a seat therein, was forced into the seat by the motion of the bus when it started. Judgment of the City Court of the City of White Plains, entered upon the verdict of a jury, reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs. In our opinion the testimony of the respondent that the bus "lurched forward" and that it "snatched forward," without other tangible proof that the bus was propelled forward with unusual or unnecessary force, and without other evidence of acts or of physical facts to warrant such a finding, was insufficient to establish negligence upon appellant's part. ( Dwyer v. Auburn Syracuse Elec. R.R. Co., 131 App. Div. 477, 479; Waddy v. Brooklyn Heights R.R. Co., 156 App. Div. 30, 31; Weinmann v. Murray, 256 App. Div. 1109; Fish v. Brooklyn Queens Tr. Corp., 246 App. Div. 843; Quinn v. Colonial Motor Coach Corp., 266 N.Y. 584; Johnson v. Berkshire St. Ry. Co., 292 Mass. 311.) In any event we would reverse the judgment and grant a new trial on the ground that the judgment is against the weight of the evidence.
Nolan, P.J., Johnston, Adel and Sneed, JJ., concur; MacCrate, J., dissents and votes to reverse the judgment and to grant a new trial, with the following memorandum:
The driver testified it was unusual for a bus to lurch. The jury could say that this bus did lurch, and that the lurch was violent. It was violent enough to knock plaintiff into the seat and cause her to cry out "You almost broke my back." The cross-examination as to other accidents, however, should not have been allowed.