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March 26, 1958


The opinion of the court was delivered by: DUSEN

This case is before the court on defendant's post-trial motions in an action for personal injuries alleged to have been caused on October 25, 1955, by defendant's failure to exercise the highest degree of care, vigilance and safety in discharging a passenger safely at a bus stop. Neither party has arranged to have the notes of testimony transcribed, so that the testimony must be considered on the basis of the trial judge's memory, as refreshed by handwritten notes taken during the trial.

The plaintiff testified that when her right foot was on the street and her left foot on the bottom step of the bus, the driver closed the double doors, pushing her left foot outward and catching her coat in the door. The bus moved forward quickly, ripping her coat, and the side of the bus (a few feet behind the front door) struck her back. These two forces (the pull of her coat and the striking of her back) threw her to the ground.

 Mrs. Pace (the only other witness for the plaintiff who saw the accident) testified that the rear of the bus was nearer the curb than its front was and the front wheels of the bus turned so that it pulled away straight (parallel to the curb), thereby causing its side to hit plaintiff. The bus pulled away 'fast' so that plaintiff did not have an opportunity to even take one step before the bus started.

 Defendant contends that because Mrs. Pace testified that the side of the bus, approximately midway between its front and rear, hit her (see 'Y' on D-3) *fn1" and because, when asked to mark the place where plaintiff fell, she made a large 'Y' on a picture (P-2) at a location several feet north of an 'X' placed on P-2 by her to mark the position of the doors when the bus stopped, 'plaintiff must have walked some distance north alongside and toward the rear of the bus before she was struck.' *fn2" Since Mrs. Pace testified that the bus started up 'fast' and before plaintiff had had an opportunity to take one step, the center of the side of the bus could have hit her before she had had an opportunity to move at all, particularly as she was faced with the problem of getting her coat from the doors. Both the 'X' and the 'Y' made on P-2 cover such a large area that they furnish no evidence of any more than that the plaintiff fell at a point north of the spot where the bus door was when she alighted. Evidence that plaintiff fell to the north of the door, rather than to the south, is not necessarily inconsistent with plaintiff's story of being thrown to the ground by the two forces described above. For this reason, the cases relied on by defendant *fn3" are inapplicable to this factual situation. *fn4"

 Also, defendant complains of the trial judge's treatment of the following improper statements of plaintiff's counsel in his closing argument (pp. 29-30 of partial transcript):

 'Now, members of the jury, it is no defense to the PTC that in their negligence they happened to select an elderly lady. They cannot limit their carelessness to healthy athletes and say to people who have advanced in years and who have acquired the conditions that all of us have in advancing years, 'Because you are old we are not concerned. If we are careless, we will limit -- "

 The trial judge stated, as soon as counsel for defendant objected, that this was not 'fair comment' and that he would explain in what way such language might have been proper in his charge to the jury. *fn5" In the charge, the trial judge explained that the defendant takes an old person whom it injures as it finds her, that it is responsible for any aggravation by it of her pre-existing injuries, and that the jury 'must consider the effect of these injuries on an old lady.' *fn6" Also, the charge stated that plaintiff had to use the degree of care for her own safety that a reasonably prudent person of her age and physical condition should use and that her advanced years should also be considered in evaluating her perception and memory. The record does not indicate that the action of the trial judge in this matter justifies a new trial. See F.R.Civ.P. 61, 28 U.S.C.A

 Defendant rests its contention that the verdict is excessive on Dr. Joyce's 1956 reports that her recovery was excellent as of that time. However, Dr. Joyce testified that, as of the time of trial, plaintiff's limitation of motion and walking with a limp, together with pain incident to her physical condition producing those results, would not improve in the future. He also testified that, in his opinion, her present physical condition, as described in the preceding sentence, was caused by

 (a) soft tissue injuries incurred at the time of the fractures of October 25, 1955, and prolonged immobilization caused by these fractures, making the ligaments inelastic; and

 (b) The aggravating effect of the accident on her previous arthritis and arthrosis.

 In view of this testimony, defendant's claim that the verdict is 'grossly excessive' as far as the medical testimony is concerned is not valid. However, defendant is entitled to a new trial unless plaintiff will agree to a remittitur of $ 5,500 because of an error in the charge permitting the jury to include in the damages recovery for loss of earnings for the period subsequent to 1956, without any direction to reduce such award to present worth, when there was no evidence in the record justifying such recovery. Plaintiff testified that prior to the accident she had done embroidery work at home for at least one knitting mill. Although there has been limitation of her leg motion since the accident, there was no testimony that she could not do embroidery work with her hands since she left the nursing home in June 1956. Exhibit P-10, which was sent out to the jury by agreement, shows that her average annual earnings for the five years prior to the accident were about $ 516. Mr. Zeffert (an actuary called by plaintiff) testified that she had a life expectancy of ten years from the date of the trial. n7 Immediately prior to the closing argument, the trial judge submitted to counsel for their comments a document entitled 'Items of Damage On Which There Was Testimony As To Dollar Amounts' (C-3), which contained the following: "A. Out-of-pocket expenses: Total $4446.43 "B. Loss of earnings, 9 months at $516.00 a year 387.00"


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