15 N.Y.2d 516 (1964)
r
r
A bus driver has a duty to exercise reasonable care to avoid striking a pedestrian when the pedestrian is in plain view and in a position of danger, and the driver is aware of the pedestrian’s presence.
r
r
Summary
r
This case concerns the duty of care owed by a bus driver to a pedestrian standing in or near the roadway. The Court of Appeals reversed the lower court’s decision, holding that the plaintiff failed to establish actionable negligence as a matter of law. The dissent argued that the bus driver, seeing the plaintiff in a potentially dangerous position, should have taken precautions such as reducing speed. The dissent cited precedents where drivers failed to see pedestrians in plain view and were still held liable, suggesting that the jury could reject the driver’s explanation and find negligence based on the circumstances.
r
r
Facts
r
The plaintiff, Rosa Hill, a mentally incompetent person, was standing in the street when she was struck by a bus driven by the defendant’s employee. The bus driver saw the plaintiff standing in a place in the street where the bus, if it stayed in its lane, would pass dangerously close to her. The driver proceeded without reducing speed or taking other precautions. The exact circumstances of her position in the street (e.g., whether she was crossing against the light or waiting for it to change) were not definitively established, but she was visible to the driver.
r
r
Procedural History
r
The plaintiff, through her guardian ad litem, Jean Rucker, sued Fifth Avenue Coach Lines, Inc. The lower court found in favor of the plaintiff. The Court of Appeals of New York reversed, dismissing the complaint.
r
r
Issue(s)
r
Whether the bus driver’s actions constituted actionable negligence, given that he saw the plaintiff in a potentially dangerous position in the street.
r
r
Holding
r
No, because the plaintiff failed to establish actionable negligence as a matter of law. The driver’s conduct did not breach a duty of care owed to the plaintiff in the circumstances presented.
r
r
Court’s Reasoning
r
The majority of the court found that the cases cited in support of the lower court’s decision were not applicable. In those cases, there was undisputed proof that the operator of the vehicle failed to see the plaintiff, even though the plaintiff was in plain and unobstructed view and in the direct path of the vehicle. The majority apparently believed the driver’s explanation for the events and concluded that there was insufficient evidence to prove negligence.
r
The dissenting opinion argued that a prima facie case of negligence and freedom from contributory negligence was established. The dissent emphasized that the driver, seeing the plaintiff in a dangerous position, proceeded without taking any precautions. The dissent cited cases where drivers claimed they never saw the pedestrian, yet were still held liable under the “Noseworthy” theory (Noseworthy v. City of New York, 298 N.Y. 76), which provides a lesser burden of proof for plaintiffs who cannot testify due to their injuries. The dissent also suggested the “last clear chance” theory could apply, arguing that the driver had ample time to avoid striking the plaintiff. The dissent explicitly argued that the driver