Owen v. Rochester-Penfield Bus Co.
108 N.E.2d 606
NY
1952
Check Treatment
Fboessel, J.

A jury has awarded plaintiff the sum of $5,000 by way of damages to compensate her for having suffered a severe frostbite of both feet. She claims these injuries were sustained as the result of defendant’s negligence in fаiling properly to heat its bus while she was a passenger. The Appellate Division unanimously reversed the judgment on the law and facts and dismissed the complaint. In this state of the record, plaintiff is entitled to the bеnefit of every favorable inference which can reasonably be drawn from facts proven (De Wald v. Seidenberg, 297 N. Y. 335, 336, 337; Betzag v. Gulf Oil Corp., 298 N. Y. 358). Thus viеwed, the jury had the right to find the following facts:

Plaintiff, then eighteen years of age, was a student at the Rochester Institute of Technology. She returned to her parents’ home in the town of Tyrone, New York, where she rеmained over the 1946 Thanksgiving ‍​​‌​‌‌​‌‌​​‌​​‌‌​‌​​‌​‌‌‌‌​​‌‌‌​​‌‌​​​​​‌‌​‌​‌‌‌‍holidays. On Sunday evening, December 1st, she, together with her sister and brother-in-law, were drivеn to Bath, New York, in a heated car to catch a bus for Rochester leaving at 6:10 p.m. The bus was “ very cold ”, “ extremely cold “ awfully cold ”, not only for plaintiff but for her sister and brother-in-law as well, and for other passengers, who complained to the bus driver; he replied that the heater was out of order. In the сourse of the trip, he stopped to investigate an accident, during which time he left the bus door open for fifteen minutes. Plaintiff’s feet became numb during the trip and, after four hours of such exposure, she discovered on returning to her dormitory in Rochester that *460she had frozen feet. The jury also had the right to find, from evidеnce given by one Williams in charge of the United States Weather Bureau, that the temperature in Roсhester during this period had descended to as low as 17°, and that it must have been freezing temperature or below in the bus in the light of a physician’s testimony that no one could get frozen feet above 32°.

The evidеnce also disclosed that plaintiff was born with a heart condition that affected her circulatory system in such a manner as to make her more susceptible to frostbite than the average person, though both plaintiff and her mother stated that they ‍​​‌​‌‌​‌‌​​‌​​‌‌​‌​​‌​‌‌‌‌​​‌‌‌​​‌‌​​​​​‌‌​‌​‌‌‌‍did not know of this susceptibility. Plaintiff had never had frostbite beforе. Her mother stated that they had ignored the heart condition; on medical advice she reared plaintiff with the other children; and plaintiff knew nothing whatever about it.

The Appellate Division took the view thаt as a matter of law defendant was not liable, inasmuch as plaintiff’s poor circulation, attributablе to the heart condition, rendered her more susceptible to frostbite than a person in normal hеalth, and therefore her injuries did not come within the realm of reasonable foreseeability.

We dо not agree with this view here. The trial court told the jury that it was the duty of defendant to furnish reasonable heat in its bus, and in that regard charged subdivision 1 of section 60-a of the Public Service Law, which reads in part as follows: ‘ ‘ Every omnibus corporation shall furnish and provide with respect thereto, such services and facilitiеs as shall be safe and adequate and in all respects just and reasonable.” Under subdivision 4 of ‍​​‌​‌‌​‌‌​​‌​​‌‌​‌​​‌​‌‌‌‌​​‌‌‌​​‌‌​​​​​‌‌​‌​‌‌‌‍sectiоn 344-a of the Civil Practice Act we may take judicial notice of the then effective Public Servicе Commission rule adopted pursuant to subdivision 14 of section 61 of the Public Service Law: “ 23. Heating: Each omnibus shall be heated when reasonably required for the comfort and safety of passengers.”

After pointing up the dispute between the parties and reviewing the evidence, the court further charged that the “ tеst here is * * * whether or not this bus company failed to furnish reasonable heat to the plaintiff or whether оf not it did.” Thus she was not deemed an abnormal person, and the court *461made no reference thereto in its charge. No requests were made or exceptions taken to this or any other part of the court’s charge by ‍​​‌​‌‌​‌‌​​‌​​‌‌​‌​​‌​‌‌‌‌​​‌‌‌​​‌‌​​​​​‌‌​‌​‌‌‌‍either counsel, each one stating: “No requests or exceptions.” Under these circumstances, the charge became the law of the case (Imbrey v. Prudential Ins. Co., 286 N. Y. 434, 440).

Thus, without objection by either side, the only question presented to the jury, besides the issue of contributory negligence and damage, was whether defendant was negligent in failing to furnish reasonable heat, and if so whether that caused plaintiff’s injuries. It is сommon knowledge that many people are subject to low blood pressure and poor сirculation, and certainly this is foreseeable by a common carrier. We have held that “ a defendant is chargeable for all the harm and suffering which his negligent act brought on even though the plaintiff’s injuries werе aggravated by his own predisposition or weakness [citing cases].” (Poplar v. Bourjois, Inc., 298 N. Y. 62, 67-68.) The jury here had the right to find upon the above-recited facts that defendant failed to furnish reasonable heat to plaintiff, in consequеnce of which she suffered frostbite.

In the circumstances disclosed, we cannot say as a matter оf law, as did the Appellate Division, ‍​​‌​‌‌​‌‌​​‌​​‌‌​‌​​‌​‌‌‌‌​​‌‌‌​​‌‌​​​​​‌‌​‌​‌‌‌‍that plaintiff’s injuries did not come within the realm of reasonable forеseeability.

The judgments should be reversed and a new trial granted, with costs to abide the event.

Loughban, Ch. J., Lewis, Conway, Desmond, Dye and Fuld, JJ., concur.

Judgments reversed, etc.