Cammisa v. Zone Oil Trucking Corp.

269 A.D. 785, 55 N.Y.S.2d 251, 1945 N.Y. App. Div. LEXIS 3842

Opinion

In an action to recover damages for personal injuries, defendants appeal from a judgment in favor of plaintiff, entered upon the verdict of the jury. Plaintiff, an employee of the Paragon Oil Company, suffered serious injuries when a boom, attached to a crane truck, fell upon him. The crane and truck were owned by defendant Zone Oil Trucking Corp., and, at the time of the accident, were operated by the individual defendant Maffetone. The boom fell when the operator found it necessary to lower it so that it would pass under a crossbeam which extended over a gateway leading from the yard where the work was being done. At that time plaintiff was standing sixteen or eighteen feet to the rear of the truck and to the side of the boom. The refusal of the court to submit to the jury the question of whether or not Maffetone was generally a coemployee of plaintiff was correct. (Wyllie et al. v. Palmer et al., 137 N. Y. 248, 257; Charles v. Barrett, 233 N. Y. 127; Irwin v. Klein, 271 N. Y. 477, 485; Ramsey v. New York Central R. R. Co., 269 N. Y. 219.) Nor may appellants now urge that the granting of their request to charge at folio 821 was erroneous. Even placing upon the charge the construction contended for' by appellants, having made the request, they are estopped from questioning the propriety of it on appeal. (Whalen v. New York Central & H. R. R. R. Co., 173 App. Div. 268.) Judgment unanimously affirmed, with costs. Present— Close, P. J., Hagarty, Johnston, Adel and Aldrich, JJ.