Summary
In Holloway, the plaintiff, an employee of Piel Bros., hit his head on a metal bar or angle iron protruding from a large machine which was being constructed in the factory of Piel by employees of Piel, under the direction of an employee of the defendant Wehmiller, pursuant to a contract for the sale of the machine between Piel and Wehmiller.
Summary of this case from Serrano v. Corcoran Plate GlassOpinion
February 8, 1971
In a negligence action to recover damages for personal injuries, in which a jury rendered a $30,000 verdict in favor of plaintiff against defendant and in favor of the latter as third-party plaintiff against the third-party defendant, (1) the third-party defendant appeals from (a) an order of the Supreme Court, Kings County, dated August 3, 1970, which (i) denied its and defendant's separate motions for judgment in their favor, respectively, notwithstanding the verdict, etc., and (ii) granted plaintiff's cross motion for a new trial, on the issue of damages only, against defendant and also against the third-party defendant on the third-party complaint and (b) an interlocutory judgment of the same court, entered September 28, 1970, in favor of plaintiff against defendant and in favor of the latter against the third-party defendant on the issue of liability only; and (2) cross appeal by defendant from so much of the interlocutory judgment as determined the issue of liability against it and in favor of plaintiff. Order reversed, on the law and the facts; third-party defendant's motion for judgment against third-party plaintiff granted; defendant's motion for judgment against plaintiff granted, and plaintiff's cross motion for a new trial on the issue of damages only denied. Interlocutory judgment reversed, on the law and the facts, and judgment directed to be entered in favor of defendant against plaintiff and in favor of third-party defendant against third-party plaintiff. Third-party defendant is awarded one bill of costs jointly and severally against defendant and plaintiff; and defendant is awarded one bill of costs against plaintiff. These awards of costs cover all the appeals. It appears that plaintiff, an employee of the third-party-defendant [Piel's], was injured when he hit his head on a metal bar or angle iron protruding from a large machine being constructed in Piel's factory by Piel's employees under the direction of an employee of defendant [Wehmiller] pursuant to a contract of sale of the machine between Piel's and Wehmiller. In our opinion the record is utterly devoid of proof of negligence, active or passive, on the part of Wehmiller. There is no proof that the protrusion on the machine in construction was unusual or improper or that it constituted a hidden trap or danger which might place defendant under a duty to warn. The machine was open and obvious, there were many pipes protruding from it at all sides, and its appearance changed daily during the construction period. The most the record establishes is that plaintiff walked straight into a machine in plain sight. Martuscello, Acting P.J., Latham, Christ, Brennan and Benjamin, JJ., concur.