People v. Casey

263 A.D. 342, 33 N.Y.S.2d 1, 1942 N.Y. App. Div. LEXIS 6888

Opinions

Adel, J.

The appellant is the driver of an omnibus owned by a corporation which transports school children under a contract with the board of education. He has been convicted of violating rule 15a of the Rules and Regulations

* of the Transit Commission, a misdemeanor. That rule states that standing passengers in an omnibus shall not exceed a number which is arrived at by application of a formula set forth in the rule. Subdivision 14 of section 61 of the Public Service Law (added by Laws of 1934, chap. 900) empowers the Commission to adopt rules covering the safety of operation of omnibuses and provides that a violation of such rules shall constitute a misdemeanor. The complaint herein is drawn in such language as to imply that

rule 15a was adopted pursuant to the aforementioned statute, and that the rule was violated because the bus carried fifty-three persons, when under the rule it was not permitted to carry more than forty-four. The undisputed proof is that as the bus approached its destination to discharge its passengers a police officer approached. When the bus stopped he called the driver out, and he and the driver together counted fifty children and two teachers emerging from the bus, thereby establishing that, including the driver, there were fifty-three persons on the bus. The officer thereupon arrested the defendant.

Rule 15a reads:

“ 15a. Standees.

“ Standing passengers shall not be permitted in any omnibus on other than franchise routes within the City of New York in excess of 50% of the rated adult seating capacity of the omnibus.

“ Standing passengers shall not be permitted in- any omnibus when used exclusively for the transportation of school children in excess of 50% of the rated adult seating capacity of the omnibus whether engaged on franchise routes or otherwise.

“No omnibus shall be operated with passengers in the entrance door stepwell or so standing as to obstruct the clear view to the front or either side of the operator.”

On the windshield of the bus there was a certificate of the Commission referring to twenty adults and thirty-four children. The certificate thus evidenced the Commission’s rated seating capacity within the meaning of rule 15a.

From the. foregoing facts it would seem that the conviction has been had on the reasoning that the presence in the bus of passengers in excess of forty-four (being thirty-four children in accordance with the rated seating capacity and ten standees in accordance with the formula) was a violation of rule 15a. The arresting officer was unable to state how many passengers were standing. He testified that because of the congestion he could not make an actual count; but in his opinion there were more than ten standees. An officer of the corporation which owns the bus testified without contradiction that notwithstanding the Commission’s rated seating capacity the bus actually had on occasion seated forty-nine children.

The appellant challenges the conviction on various grounds and urges that his guilt was not proved beyond a reasonable doubt.

In my opinion the judgment of conviction should be reversed solely on the ground of the insufficiency of the proof to establish the defendant’s guilt beyond a reasonable doubt, for the following reasons: Rule 15a obviously is directed to the number of standees, not to the total number of passengers in a bus. Clearly under the formula set forth in the rule any number of standees in excess of ten violates the rule. But here there is no evidence as to how many standees there were, and it does not follow as the sole or strongest inference from the fact that the rated seating capacity was thirty-four and the total number of passengers was fifty-two, that there were eighteen standees. It is obvious that more children than adults can be seated in a given area. In addition, there is testimony here that the bus on occasion had actually seated forty-nine children. For all that the present record shows, that number may have been seated during the trip which ended in the arrest of the driver, and in that event there would have been but three standees. The police officer’s testimony that there were many standees at the time the bus was coming to a stop is not of material significance. It is common knowledge that many, if not all, bus passengers will arise from their seats shortly before a bus comes to its stopping place, particularly where, as in this case, all the passengers intended to alight.

It is true that it can be argued that because fifty-two passengers were on the bus there was a violation of one of two rules, one rule relating to standees and the other to seating capacity. The complaint, however, charges only a violation of rule 15a. Indeed, so far as the record shows there is no express rule setting forth the standards for determining rated seating capacity. Such a rule exists, however, and is known as rule 15, as appears from the dissenting opinion of Mr. Justice Carswell herein. The defendant, however, cannot properly be convicted of a violation of a rule that is not set forth in the complaint. The defendant was called upon to meet only the charge of permitting more than ten persons to stand in the bus. That he was guilty of the charge has not been established by proof beyond a reasonable doubt. It is not necessary at this time to pass upon the other questions raised.

The judgment should be reversed on the facts, the complaint dismissed, and the fine remitted.

Lazansky, P. J., Hagarty and Taylor, JJ., concur; Carswell, J., dissents and votes to affirm, with opinion.

Rules and Regulations Applicable to All Omnibuses Operating in the City of New York. — [Rep.