Opinion
April 7, 1960
Appeal from the Erie Trial Term.
Present — Williams, P.J., Bastow, Goldman, Halpern and Henry, JJ.
Judgment and order unanimously reversed on the law and facts, without costs of this appeal to any party, and new trial granted. Memorandum: Defendants appeal from judgments 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 licensee 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.)