53 A.D.2d 750 | N.Y. App. Div. | 1976
Appeals from a judgment of the Supreme Court, entered June 6, 1975 in Albany County, upon a verdict rendered at a Trial Term in favor of Irene T. Ploof, as administratrix of the estate of Ernest L. Ploof, against both defendants, B. I. M. Truck Service, Inc., and Lane Construction Corporation, and from a judgment of the same court, entered June 11, 1975, in favor of Zappala Co., Inc., dismissing Lane’s third-party complaint. On June 18, 1970 Ernest L. Ploof, a truck driver employed by the Zappala Co., Inc., was fatally injured when he was unloading a shipment of concrete pallets at a Lane Construction Corporation site. A trolley cable on the Side-O-Matic unloading device snapped as he was trolleying a load to an elevated spot at the bridge site and the load slid down pinning him beneath it. Following a jury trial a verdict was rendered against Lane and B. I. M. for $350,000 wrongful death and $25,000 pain and suffering, apportioning the liability 80% against B. I. M. and 20% against Lane. On the third-party action by Lane against Zappala the jury returned a verdict of no cause of action. The instant appeals ensued. With respect to the liability of B. I. M. Truck Service, Inc., the evidence is sufficient to permit the jury to have found that B. I. M. was liable on the theory of implied warranty of fitness and strict liability as enunciated in Velez v Craine & Clark Lbr. Corp. (33 NY2d 117) and Codling v Paglia (32 NY2d 330). The case was pleaded, tried and correctly charged under the above theory. From the evidence the jury could find that the trolley cable was sold by B. I. M. to Zappala. The proof was that this accident was caused by the breaking of the trolley cable and that the failure of the cable was caused by its being too large for the pulley system in which it operated. This defect was further aggravated by the reverse bends in the system which weakened the capacity of the cable to the degree that it was overloaded when it was placed under the greatly increased pressure caused by the attempt to trolley these very heavy cement blocks up an elevated boom. On the evidence the jury was justified in finding that B. I. M. breached its implied warranty of fitness for its intended purpose in regard to the sale of the cable because it was too large for its pulley system. The questions as to Lane’s liability under section 200 of the Labor Law and section 240 of the Labor Law were submitted to the jury by specific questions contained in the interrogatories. Section 200 of the Labor Law reads: "1. All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons. The board may make rules to carry into effect the provisions of this section.” As to this section, the evidence revealed that Lane’s foreman selected and constructed an elevated unloading site about three fourths of the way up the slope to the bridge to facilitate his slope paving and then directed decedent to unload the pallets on this elevated platform. During the attempted unloading Lane’s foreman was in fact on the truck with the
