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Carter v. Public Service Coordinated Transport

Decided: November 8, 1957.


Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.


This appeal is from a judgment entered in favor of the plaintiffs, Eugenia A. Carter and her husband, John R. Carter, pursuant to a jury verdict in the Superior Court, Law Division. A motion for involuntary dismissal at the conclusion of the plaintiffs' case and a motion for a new trial were both denied.

Eugenia A. Carter, in the mid-afternoon of March 15, 1956, was waiting at a posted bus stop to board defendant's bus to take her to her doctor. She observed two buses approaching; one was riding along the curb line and the "other bus was passing it and cutting in front of it." The bus that was coming along the curb stopped before it approached the bus station. The other bus, after cutting in front of the bus at the curb, went past the posted sign and up to the corner where it stopped in a position diagonal to the curb. Mrs. Carter testified that when the bus came to a stop, the door of the bus was 20 to 24 inches from the rounded curb and the rear of the bus about three feet from the curb. The testimony is conflicting as to the exact distance between the bus and the curb. She walked toward the bus, said she saw the operator, and that he saw and looked at her. She said that as she attempted to step onto the bus from the curb, she had her left foot on the step but "the reach, stretch was too far for me and my foot came back from the step" and she fell. She said that her left foot slipped off the step, she lost her shoe, the upper portion of her body went forward into the bus, and she assumed a kneeling position so that just her feet were hanging out of the bus. When asked on direct examination, "Were you able to get up?" the plaintiff replied, "Eventually, I was,

because there wasn't anybody there to help me, and I had to get myself up."

Her testimony on direct examination proceeded as follows:

"Q. What did the bus driver say to you when he got out? He said 'I knew you were pregnant.' He said that, 'and I thought you were going to have trouble when you went (sic).'"

The defendant strenuously objected for the reason that what the witness said was narrative, and not part of the res gestae , and the driver of the bus was not a party to the action. However, the trial judge overruled the objection and permitted the answer as part of the res gestae. The bus driver testified that he saw Mrs. Carter walk toward the bus from where she had been standing near the posted bus sign, and denied he knew she was pregnant.

Both of the plaintiffs testified that her pregnancy was "large," and on the day of the incident she was wearing a loose-fitting winter coat with the lining removed. The same day, after the incident, a police officer was called to the plaintiffs' home to take her to a doctor, and he testified that her pregnancy "was an obvious fact." The baby, born on April 6, 1956, was normal and healthy, and no cause of action is predicated in its behalf.

A statement, signed by Mrs. Carter, was prepared by an investigator of the defendant on the day following the accident, and stated that the step of the bus was six to eight inches from the curb. In explanation of the contradiction with her testimony on direct examination, the plaintiff stated that when questioned by the investigator she was confined to her bed under sedation, and that the distance had been suggested by the investigator, although she admitted signing the statement. The investigator on cross-examination testified that Mrs. Carter had told him the step of the bus was eight to ten inches from the curb. A police officer, who was on duty at the crossing intersection, stated that when the incident occurred he had his back to the bus. He said when he observed "something wrong," he went to the bus and saw the plaintiff "leaning over in the bus." He testified

that the bus was stopped where the curb turns, only three inches from the curb, and that there was not room for her to stand between the bus and the curb. The bus driver testified that when the bus stopped the distance was "possibly 7 inches" between the side of the bus and the curb.

The defendant's investigator was asked on cross-examination if he discussed with Mrs. Carter at the time he secured the statement "whether or not she had felt her baby move since the accident." ...

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