Kelly v. Eagle Motor Haulage Co.

243 A.D. 739

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1935
• Status: Published

Opinion

Action to recover for personal injuries sustained by the closing of a door on the rear of defendant’s truck, which was backed up against a platform on which plaintiff was standing while assisting in loading the truck. Complaint was dismissed on the ground that there was no proof of negligence. Judgment reversed on the law and a new trial granted, with costs to appellant to abide the event. A jury might have found that the closing of the door which struck plaintiff was due to the position in which defendant’s servant left the track, the right rear wheel being in a runway three inches lower than the left rear wheel, which was on the sidewalk; and that while the track was being loaded with a barrel of licorice, weighing from 225 to 250 pounds, the left door swung closed and struck plaintiff. On these facts the jury might have found that the closing of the door was due to defendant’s negligence in leaving the track in the position in which it was left. It was not necessary to invoke the doctrine of res ipsa loquitur. Lazansky, P. J., Young, Carswell, Seudder and Johnston, JJ., concur.