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Massotto v. Public Service Coordinated Transport

Decided: December 15, 1959.

MARY MASSOTTO, ET AL., PLAINTIFFS-APPELLANTS,
v.
PUBLIC SERVICE COORDINATED TRANSPORT, ETC., DEFENDANT-RESPONDENT



Price, Gaulkin and Sullivan. The opinion of the court was delivered by Price, S.j.a.d.

Price

Plaintiffs seek the reversal of a judgment in the Superior Court, Law Division, entered on a jury verdict of no cause for action. Plaintiff Mary Massotto sought damages for personal injuries allegedly caused by the negligent operation of a public bus in which she was a paying passenger. Her husband Dominick Massotto sued per quod.

In support of their appeal plaintiffs contend that the trial court committed prejudicial error in its charge to the jury. The justification for the contention must be tested against the following factual background.

Mrs. Massotto, on boarding the bus, initially selected a seat near the front of the vehicle. Shortly thereafter she arose and, while walking from the front of the moving bus to secure another seat in the rear, was injured when thrown by reason of the bus operator's sudden and abrupt halting of the vehicle. There was no substantial challenge of plaintiffs' contention that the stoppage of the vehicle was sudden and precipitate. The bus operator testified that his hasty action was necessary because without warning another vehicle was driven in front of the bus so rapidly that quick and forceful application of his brake was required to avoid a collision. Plaintiffs contend that the court erred in submitting to the jury the issue of contributory negligence. Their contention is based on the asserted absence of any evidence of negligence on the part of Mrs. Massotto.

An examination of the record reveals the following testimony by plaintiff:

"Q. Tell us what you did when you changed. A. I got off the seat and I was moving toward the back of the bus. All of a sudden --

Q. Just a minute. How were you moving toward the back of the bus? A. Facing the back of the bus.

Q. Were you walking? A. I was walking, yes.

Q. What is this? Down the aisle? A. Down the aisle.

Q. Between the cross seats? A. That's right.

Q. Were you holding onto anything? A. Yes, I was holding as I was going up, as ...


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