decided: June 6, 1968.
CARMINE BENNETTI, JR., BY HIS GUARDIAN AD LITEM, CARMELA BENNETTI, ET AL., APPELLANTS, ET AL., PLAINTIFFS,
NEW YORK CITY TRANSIT AUTHORITY ET AL., RESPONDENTS, ET AL., DEFENDANT
Bennetti v. New York City Tr. Auth., 27 A.D.2d 915, reversed.
Judges Scileppi, Bergan, Keating and Breitel concur in memorandum; Chief Judge Fuld and Judges Burke and Jasen dissent and vote to affirm in a separate memorandum.
Memorandum. In this negligence action resulting from an intersection collision between a New York City Transit Authority bus and a private car, both defendants alleged they were driving slowly and cautiously. Plaintiffs, passengers in the bus, were denied recovery. It is manifest from the record that the speed of the vehicles was an essential element of plaintiffs' case on the issue of due care. The exclusion of evidence of injuries to passengers on the bus was reversible error in that such evidence had a direct bearing on the force of the impact and the relative speed of the vehicles involved. The evidence should have been allowed, accompanied by an appropriate limiting instruction.
Order reversed and new trial granted, with costs to abide the event, in a memorandum.
Dissenting Memorandum. We favor affirmance for the reasons stated by the Appellate Division in its opinion. We would merely add that evidence of plaintiffs' injuries has no bearing either on the defendant's negligence or on the speed at which its bus was traveling. Accordingly, exclusion of such proferred evidence was not error.
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