73 A.D.2d 753 | N.Y. App. Div. | 1979
from a judgment of the Supreme Court in favor of plaintiffs, entered June 20, 1978 in Albany County, upon a directed verdict rendered at a Trial Term, on plaintiffs’ motion pursuant to CPLR 4401 at the close of plaintiffs’ proof. This action was commenced by plaintiffs to obtain indemnity from defendant, pursuant to the terms of a certain railroad sidetrack agreement, for the amount paid to Willis H. Van Allen, one of plaintiffs’ employees, pursuant to a claim under the Federal Employers’ Liability Act for injuries sustained by Mr. Van Allen on December 4, 1972. At the trial of the action before a jury, Willis H. Van Allen testified that he had been an employee of Penn Central since 1941, holding the position of conductor for about 10 years. On December 4, 1972, he had reported to work at the Selkirk yards at about 2:30 p.m. and was assigned to deliver certain freight cars to various buildings in the Northeastern Industrial Park in Guilderland owned by defendant. The train crew, in addition to Van Allen as the conductor, consisted of a brakeman, an engineer and a fireman. The train, consisting of an engine, a caboose and 10 freight cars, arrived at the Industrial Park at about 6:00 p.m., at which time it was snowing. Earlier it had been raining and freezing. Mr. Van Allen stepped off the train when it stopped at Building No. 11 in the Industrial Park and took about five or six steps in the four- to six-foot-wide area between the building platform and the freight cars when he "stepped into this hole with ice, covered by snow” and fell upon his right leg, fracturing his right ankle. It was his recollection that the snow in this area was six to eight inches deep. After the accident, he was taken to the Albany Medical Center where he was X-rayed and his right leg was placed in a cast. His leg remained in the cast for about six weeks, and thereafter he used crutches for about a month and a half. He returned to work on April 14, 1973. Defendant was immediately advised by letter of the accident and that it was a matter to be handled by defendant pursuant to the terms of the agreement between plaintiffs and defendant. On February 27, 1973, defendant’s insurance carrier determined that there was no liability on the part of defendant, and declined to pay the claim made by Willis Van Allen. On February 28, 1973, plaintiffs advised defendant that they had no alternative but to proceed pursuant to the provisions of the Federal Employers’ Liability Act, and would look to defendant for reimbursement of any moneys paid to the claimant employee, pursuant to the terms of the sidetrack agreement. On August 7, 1973, plaintiffs again advised defendant that it would look to defendant to indemnify and hold it harmless for any and all expense and liability it may be put to, including any judgment which may be rendered or any amount paid to Willis Van Allen in compromise settlement of his claim then pending against plaintiffs. Defendant was also advised that on August 21, 1973 settlement negotiations would be conducted and defendant was invited to attend and protect its interests. On September 23, 1973, Willis Van Allen settled his claim under the Federal Employers’ Liability Act against plaintiffs for the sum of $10,750 and delivered a general release. On or about May 6, 1974, this action seeking indemnity, pursuant to the terms