Adler v. Shell Transportation Corp.

26 A.D.2d 625, 272 N.Y.S.2d 683, 1966 N.Y. App. Div. LEXIS 3649

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 5, 1966
• Status: Published

Opinion

In an action by plaintiff, a longshoreman, to recover damages for personal injuries allegedly sustained during the loading of a cargo hauling truck owned and operated by the defendants, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered August 23, 1965, which dismissed the complaint upon the court’s decision at the close of plaintiff’s case. Judgment reversed on the law, and a new trial ordered with costs to abide the event. No questions of fact have been considered. The evidence most favorable to plaintiff reveals that at the time of the alleged accident he was engaged in the removal of 200-pound barrels of .sheepskin hides from a pallet pn board the track of the defendants. The procedure used for the loading of the barrels Was dangerous and had been objected to by plaintiff. He had nevertheless been instructed by the driver of the truck, who had assumed supervision over plaintiff, to continue the loading. Under such circumstances, it cannot be held as a matter of law that the plaintiff is guilty of contributory .negligence, (Broderick v. Cauldwell-Wingate Co., 301 N. Y. 182.) Beldock, P, J„ Christ, Hill, Rabin and Benjamin, JJ., concur.