Opinion
March 16, 1960
Appeal from the Erie Trial Term.
Present — Williams, P.J., Bastow, Goldman, Halpern and McClusky, JJ.
Judgment and order unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: This action was brought to recover damages for injuries sustained by plaintiff when a bulldozer operated by an employee of respondent caused a piece of cement to strike plaintiff. The issue that developed upon the trial was whether the direction to the operator of the bulldozer at the time of the accident, which is alleged to have been negligently given, was given by the foreman employed by the plaintiff's employer or by the foreman employed by the defendant-respondent. This issue was not presented to the jury. Instead the case was submitted to the jury to determine whether the operator of the bulldozer was acting as the employee of the defendant-respondent or of some third party. There was no evidence to justify the submission of this issue. In the interests of justice a new trial should be had. Furthermore, upon the present proof, the bulldozer operator was negligent in failing to see the plaintiff in any event and the verdict exonerating the defendant-respondent was against the weight of the evidence.