Rosario v. New York City Transit Authority

73 A.D.2d 912, 423 N.Y.S.2d 254, 1980 N.Y. App. Div. LEXIS 9825

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 7, 1980
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from a judgment of the Supreme Court, Kings County, entered February 23, 1979, which was in favor of defendant and against them, upon a jury verdict. Judgment reversed, without costs or disbursements, and new trial granted. Reversal is required because the trial court’s charge to the jury on "emergency” failed to make it clear that the change in the color of the traffic signal facing the defendant’s bus driver could not be treated as creating an "emergency”. In addition, the court erred in its instruction that the bus driver’s deposition, his MV 104 form, and the information he gave defendant’s dispatcher could not be considered "legal proof of the facts stated in them.” Since the statements were admissions which contradicted the driver’s trial testimony, they could be considered as evidence in chief. Mollen, P. J., Hopkins, O’Connor and Lazer, JJ., concur.