Schultz v. Alfred
| Decision Date | 27 July 1960 |
| Citation | 203 N.Y.S.2d 201,11 A.D.2d 266 |
| Parties | Louis SCHULTZ, Plaintiff-Respondent-Appellant, v. David ALFRED, Nathan Alfred and Ruby Alfred, d/b/a Alfred Distributing Co., Defendants-Respondents, and Larner Coal and Oil Co. Inc., Defendant-Appellant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Lewis & Lyons, Albany (Donohue & Bohl, Albany, of counsel), for defendant-appellant-respondent, Larner Coal and Oil Co.
George Polansky, Albany (William F. Conway, Albany, of counsel), for plaintiff-respondent-appellant.
Towner & Erway, Albany (Neile F. Towner, William R. Crotty, Albany, of counsel), for defendants-respondents Alfred.
Before BERGAN, P. J., and COON, GIBSON, HERLIHY, and REYNOLDS, JJ. REYNOLDS, Justice.
This is an appeal by the defendant, Larner Coal and Oil Co., Inc. (hereinafter referred to as the Larner Company), from a judgment for $5,000 and costs in favor of the plaintiff, Louis Schultz, and against said Larner Company. The Larner Company also appealed from an order setting aside the verdict rendered against defendants, David Alfred and others, a copartnership, d/b/a Alfred Distributing Co. (hereinafter referred to as the Alfred Company) and from a judgment in favor of said Alfred Company against the plaintiff dismissing the complaint with costs. The plaintiff appealed from said judgment in favor of the Alfred Company setting aside the verdict and dismissing the complaint with costs.
The trial was held before Elsworth, J., and a jury. The usual motions were made by both defendants at the close of plaintiff's case and also at the close of the entire case to dismiss the complaint. The Court reserved decision and submitted the case to the jury. The brought in a verdict against both defendants for $5,000. The defendant, Alfred Company, renewed said motion and moved to set aside the verdict of the jury as contrary to the law, contrary to the evidence and on all the grounds set forth in Section 549 of the Civil Practice Act except inadequacy. The Larner Company made a similar motion. The Court reserved decision on said motions. Subsequently the Court in a memorandum denied the motion of the Larner Company and granted the motion of the Alfred Company made at the close of the whole case to dismiss--upon which decision was reserved--and granted such motion as well as the motion to set aside the verdict as contrary to the evidence and the law and dismissed the complaint.
The facts upon which this negligence action is predicated are rather unusual. The accident occurred at the premises of the Alfred Company. Plaintiff was injured as he was leaving the rear door of the premises following one Davis and one of the partners, Reuben Alfred. Plaintiff had come to the premises of the Alfred Company in company with one Davis seeking employment, and at the time of the occurrence of the accident was being taken by Alfred out a rear entrance way which led to an alley which in turn led to a warehouse owned by the said Company. At this particular moment, the defendant, Larner Company, was making a delivery of fuel oil from one of their fuel oil trucks to an oil tank located in the basement of the Alfred Co. premises, access to which from the outside was gained through a fill pipe located on the outer wall on the alley side of the building approximately five feet above the ground and about six inches from the doorway. Larner's truck operator had inserted the nozzle of the oil hose into the fill pipe and in so doing, the oil hose leading from the oil truck to the fill pipe had been so placed as to cross in front of the outer side of this door.
When the defendant, Alfred, opened the door, leading the way for this plaintiff, the door, which opened outward, struck the hose, dislodging it from the fill pipe and, as oil was then being pumped under pressure from the truck through this hose, the oil was sprayed over the plaintiff's face, some of it allegedly getting into his eyes and causing the injuries for which he has recovered a verdict against both of these defendants.
We may at the outset dispose of two phases of this controversy. The judgment against the defendant, Larner Company, based on the negligence of its truck driver is amply supported by the evidence and must be affirmed. The appeal of the defendant, Larner Company, from the order dismissing the plaintiff's complaint as against the codefendant, the Alfred Company, was not properly taken for the reason that the Larner Company is not an aggrieved party and has no right to...
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