Opinion
Argued September 16, 1976
Decided October 19, 1976
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, JOHN T. CASEY, J.
John J. Cavanaugh, Jr., and Joseph P. Huberty for appellant.
James S. Carter for defendant-respondent.
MEMORANDUM. The order of the Appellate Division should be affirmed. Evidence of the condition of the radiator cover approximately six months prior to the accident was properly excluded. The issue presented to the jury was not whether the repairs to the radiator cover were negligently made; nor was the issue whether the radiator cover in its original condition would have been a better place on which to work than the radiator cover as modified. The question was whether the radiator cover, as it existed on the day of the accident, was a safe place to work. Evidence of the prior condition was not relevant to this issue, which ultimately was resolved against plaintiff by the jury.
As to the alleged errors in the court's charge, plaintiff's failure to assert any objections or exceptions to the charge leads to the conclusion that any error was not preserved for our review. Nor can it be said that the actions of the trial court deprived the plaintiff of a fair trial as a matter of law.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER and FUCHSBERG concur in memorandum; Judge COOKE taking no part.
On appeals by defendant and third-party plaintiff and by third-party defendants: Appeals dismissed, without costs, upon the ground that said appellants are not parties aggrieved.
On plaintiff's appeal: Order affirmed, without costs.