258 A.D. 375 | N.Y. App. Div. | 1940
The plaintiff appeals from a judgment dismissing his complaint at the close of his evidence in an action brought to recover for personal injuries. The evidence most favorable to him is that he was struck by the automobile driven by defendant Morel while walking northerly on the right shoulder of a two-strip concrete roadway sixteen feet wide, going from Tupper Lake to Piercefield; that a truck driven by the defendant Edgar Tellstone, in the employ of the respondent International Paper Company, going southerly, drove upon and occupied two-thirds of the easterly half of the concrete pavement, forcing Morel, who was driving his automobile northerly, off the pavement and upon the easterly shoulder, where he injured plaintiff. The action was discontinued against Morel and Tellstone by consent. The trial justice stated the reasons for dismissing the complaint against respondent International Paper Company: “ I am satisfied there is no evidence here that the truck in question struck this man. There is no evidence that the truck was in the employ of the International Paper Company, and, besides that, the plaintiff has wholly failed, in my judgment, to establish the burden of proof upon him to show himself free from contributory negligence.”
Considering these grounds in the order named: Respondent would be hable if its truck was negligently and unlawfully driven upon the portion of the highway provided for north-bound vehicles thereby forcing Morel to drive upon the shoulder where plaintiff was walking. (Rosen v. Gray, 247 N. Y. 589; DeCarvalho v. Brunner, 223 id. 284; Hart v. Ruduk, 233 App. Div. 453; Edick v. Davenport, 218 id. 198; Hancock v. Steber, 208 id. 455.) Tellstone with his truck was drawing pulp wood belonging to respondent from Piercefield to Corinth, for which he received four dollars and thirty-five cents a cord. Respondent owned about 30,000 cords of this wood, which was being moved by ten or more truck drivers working under the same terms as Tellstone. The company’s official in charge says: “ Well, Mr. Tellstone called me on the telephone about a week previous to the date he came to my office, and he said he understood that there was wood there that was to be drawn to Corinth and that he would like to get a job. I told him at that time that there was no opening, we had all the trucks we needed, but possibly in another week or ten days there would be an opening there for him, and I told him to come around in about a week, and he did. As I recall it, he came around in about a week or ten days, and he came into the office and he wanted to know if the job was still good, and I said yes. Well, he said, what do you pay, and I told him. Q. What did you tell him? A. I told him that the company were paying $4.35 per cord for wood delivered
The judgment should be reversed on the law and facts, with costs, and a new trial granted.
Bliss, Schenck and Foster, JJ., concur; Crapser, J., dissents and votes to affirm.
Judgment reversed on the law and facts, with costs, and a new trial granted.