Waller v. Feiss

260 A.D. 958, 23 N.Y.S.2d 603, 1940 N.Y. App. Div. LEXIS 5611

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 25, 1940
• Status: Published

Opinion

In an action to recover for personal injuries, the plaintiff, a helper on defendant’s truck, in the discharge of his duties left the truck and took a position three feet behind the right front wheel and three feet to the right of the truck for the purpose of directing the chauffeur in backing to a position alongside a building and parallel with it for the purpose of making deliveries. The truck involved was a closed three and one-half ton Autocar with the driving wheel on the left-hand side. The chauffeur was unable to see the right-hand side of the truck, as the plaintiff knew. Under direction of the plaintiff, according to plaintiff’s testimony, the truck backed from its position on the sidewalk at an angle to the building, toward the building, striking plaintiff’s right foot, whereupon he called to the chauffeur who moved the car forward off his foot and, plaintiff having fallen in the meantime, backed again running over his left foot. During the operation and although plaintiff, watching the movement of the rear of the track, knew that the front wheels had to be cut in his direction, he did not leave the position he originally took at the side of the truck. Judgment in favor of the plaintiff and against the defendant reversed on the law and the facts, with costs, and complaint dismissed on the law, with costs. In our opinion, there was no proof of negligence on the part of the defendant and, in any event, the plaintiff was guilty of contributory negligence as a matter of law. No other question is presented on this appeal. Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ., concur.