Zelasko v. Buffalo Transit Co.

Judgment and order unanimously reversed on the law and facts, without costs of this appeal w any party, and new trial granted. Memorandum: Defendants appeal from iudgments entered in favor of plaintiffs in a personal injury action after jury verdicts and from orders denying their motions to set aside the verdicts and to dismiss the complaint, or in the alternative to set aside the verdicts and grant an order for a new trial. The infant plaintiff was struck and injured by defendant, Transit Company’s passenger bus, which was being operated by its employee, defendant Lawson, on its bus parking lot. In its charge the trial court instructed the jury: “ The plaintiffs cannot recover unless you so find that there was unlawful or wanton negligence on the part of the driver, because the plaintiff, from her description, was a licensee on that property or a trespasser.” No objection having been made by the plaintiffs, that charge became the law of the case. (Leonard v. Home Owners’ Loan Corp., 297 N. Y. 103; Buckin v. Long Is. R. R. Co., 286 N. Y. 146.) The verdict of the jury that there was unlawful or wanton negligence on the part of the driver was contrary to the evidence and should be set aside. However, rather than dismiss the complaint, we are granting a new trial. We are so inclined because plaintiffs may be able to establish in a new trial that the infant plaintiff was a *899licensee on defendant’s premises and that her injuries were caused !by such active negligence on the part of the operator of the bus as to render the defendants liable therefor. (See Barry v. New York Cent. & Hudson Riv. R. R. Co., 92 N. Y. 289; Byrne v. New York Cent. & Hudson Riv. R. R. Co., 104 N. Y. 362; Barrett v. Brooklyn Hghts. R. R. Co., 188 App. Div. 109, affd. 231 N. Y. 605; Carney v. Buyea, 271 App. Div. 338; Restatement, Torts, § 341; Prosser, Torts [2d ed.], p. 448; Notes 49 A. L. R. 778; 156 A. L. R. 1226.) (Appeal from judgment and order of Erie Trial Term against both defendants in favor of plaintiffs in a bus line negligence action. The order denied motions to set aside the verdicts and dismiss plaintiffs’ complaint or, in the alternative, for a new trial.) Present — Williams, P. J., Bastow, Goldman, Halpem and Henry, JJ.