Serrano v. Corcoran Plate Glass Co., Inc.

• Decision Date: 14 November 1972
• Citation: 40 A.D.2d 53,337 N.Y.S.2d 385
• Parties: James SERRANO, Plaintiff-Respondent, v. CORCORAN PLATE GLASS CO., INC., Defendant, and Thypin Steel Company, Inc., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 385

337 N.Y.S.2d 385

40 A.D.2d 53

James SERRANO, Plaintiff-Respondent, v. CORCORAN PLATE GLASS CO., INC., Defendant, and Thypin Steel Company, Inc., Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Nov. 14, 1972.

William F. McNulty, New York City, of counsel (Anthony J. McNulty, New York City, with him on the brief; Bien, Campbell & Cunnion, Scarsdale, attorneys), for defendant-appellant Thypin Steel Co., Inc.

David Jaroslewicz, of counsel (Helen B. Stoller, New York City, with him on the brief; Charles C. Levine, attorney), for plaintiff-respondent.

Before McGIVERN, J.P., and MARKEWICH, NUNEZ, MURPHY and McNALLY, JJ.

McGIVERN, Justice Presiding.

Plaintiff, foreman of L.E.C. Metal Products, was injured while helping to unload two heavy crates of metal tubing consigned to his employer by the defendant, Thypin Steel Company, Inc. The trucktrailer from which plaintiff fell was owned by the latter, and the claim, as developed at the trial, was that he tripped on loose and untied angle irons on the floor of defendant's truck, which the plaintiff was helping to unload, under the directions of the defendant's agent, it being the defendant's practice not to unload, leaving that task to the customer.

The basis of the plaintiff's claim was that the defendant had negligently failed to provide him, a customer's employee, with a safe place to work, and this was so charged to the jury. There was testimony that hitherto, the obtaining practice was that 'the angle irons were tied together'. This time they were not. They were scattered about over an area, over which plaintiff had to tread to remove the cargo, which he was directed to remove from the confined space in the truck, and the plaintiff tripped on the irons and fell to the ground; his finger caught on a nail protruding from a crate resting on the ground; the result was severe mutilation and amputation of the finger. The jury found in his favor, unanimously, in the amount of $30,000; Supreme Court, Bronx County (Getzoff, J.); judgment entered November 30, 1971.

Although the complaint alleged that he slipped, on the trial, and at the examination before trial in 1966, the plaintiff testified that he tripped. The trial judge, there being no objection, permitted the pleadings to conform with the proof. Properly so, there having been no objection to the proof. Dittmar Explosives v. Ottaviano, Inc., 20 N.Y.2d 498, 502, 285 N.Y.S.2d 55, 58, 231 N.E.2d 756, 758. In respect of negligence, the trial judge charged that 'it was the duty of the defendant to provide a safe place for the plaintiff to do what he was required to do.' No exception. And he also charged, patently in the defendant's favor:

'Now, the defendant had no duty to warn the plaintiff against any condition relating to the merchandise on its trucks of which the plaintiff was aware, and the defendant had no duty to secure the plaintiff's safety against any condition that was readily observable by the plaintiff, having in view his age, intelligence, and experience.'

To this latter charge, the defendant, not unnaturally, did not object. But the plaintiff did object. Cf. Brown v. Du Frey, 1 N.Y.2d 190, 151 N.Y.S.2d 649, 134 N.E.2d 469; Kluttz v. Citron, 2 N.Y.2d 379, 384, 161 N.Y.S.2d 26, 30, 141 N.E.2d 547, 549. Notwithstanding, the plaintiff recovered.

The amount awarded by the jury, not having been challenged as excessive, we perceive no grounds for reversing the jury's verdict. The question of the plaintiff's contributory negligence was properly for the jury. Rossman v. La Grega, 28 N.Y.2d 300, 321 N.Y.S.2d 588, 270 N.E.2d 313. And since we cannot reasonably say, on this record, that the jury's verdict is against the weight of the evidence, or that the fact of negligence and proximate cause, as found by the jury, is, as a matter of law, without support in the evidence, we affirm. Kelly v. Watson Elevator Co., 309 N.Y. 49, 127 N.E.2d 802. See, also: Sophian v. Von Linde, 22 A.D.2d 34, 37, 253 N.Y.S.2d 496, 499. Particularly is this sound, since we are exhorted, as an appellate court, not to substitute our evaluation of conflicting evidence for that of a jury, 'if the verdict is one which reasonable men could have rendered after reviewing conflicting evidence. . . .' Triggs v. Advance Trucking Corp., 23 A.D.2d 777, 778, 258 N.Y.S.2d 488, 490.

Nor do we regard the holding in Holloway v. Wehmiller Machinery, 36 A.D.2d 621, 319 N.Y.S.2d 142 (2nd Dept.) as at odds with this disposition. In that case, an employee of Piel's apparently walked into a metal bar protruding from a large machine in plain sight, on the Piel's premises, the machine having been under construction by Piel's employees over a period of time. In fact, the construction work had been in progress for about eleven days before the accident; the machine itself covered an area of twelve feet by fifty feet, and was ten feet in height. It was as plain as the Colossus of Rhodes. Under such circumstances, the machine was not deemed to have presented a negligent condition. But here, the offending causes were loose angle irons, clanging and unsecured on the floor of the defendant's truck, to which place of work the defendant had invited the plaintiff, a customer's employee, to perform his tasks, and directed him in so doing. The jury has found such conduct not reasonably prudent under the circumstances. We find no basis for disagreement. And we affirm with costs.

Judgment, Supreme Court, Bronx County, entered on November 30, 1971, affirmed. Respondent shall recover of appellant $60 costs and disbursements of this appeal.

All concur except MURPHY and McNALLY, JJ., who dissent in an opinion by McNALLY, J.

McNALLY, Justice (dissenting).

I vote to reverse and dismiss the complaint on the ground that the plaintiff failed to establish any actionable negligence on the part of the defendant Thypin Steel Company, Inc.

On the date the accident occurred, the defendant, Corcoran Plate Glass Co., Inc. ('Corcoran'), was the owner and occupier of the first floor of a factory building located at Nos. 109-- 111 3rd Street, in the City of Mt. Vernon. The...