Opinion
June, 1933.
On appeal by Forsythe Bros., Inc., amended judgment reversed on the law and a new trial granted, costs to abide the event, upon the ground that the court erred in refusing to charge that there was no proof that defendant Hazel was an incompetent operator. The negligence of both the appellant and Hazel was properly submitted to the jury. The distinction between the negligence of the operator and his incompetency to operate the crane is clear in law. Hazel's experience was undisputed, and no evidence whatever was presented to establish his general incompetency. In the circumstances it is impossible to say on which basis the jury's verdict was predicated. We are, therefore, constrained to order a new trial. On appeal by plaintiff, the amended judgment dismissing the complaint as against defendant Hazel is unanimously affirmed, with costs. Lazansky, P.J., Kapper, Carswell, Scudder and Tompkins, JJ., concur.