Opinion
March 3, 1959
The judgment appealed from is unanimously affirmed as against John W. McGrath Corporation, with costs to said defendant-respondent. The judgment as to Allied Stevedores Corp. is unanimously reversed on the law and on the facts and a new trial directed in the exercise of discretion on the ground that the verdict is against the weight of the credible evidence on the issue of liability, with costs to abide the event. On this record plaintiff's version of the occurrence and of the manner in which he sustained his injuries is highly improbable. The jury's verdict is entitled to considerable weight but does not require affirmation when we are morally certain that the evidence is incredible. ( Bottalico v. City of New York, 281 App. Div. 339, 341.) Moreover, there was a failure of proof on the issue of Allied's control of the offending hi-lo, but such failure may be remediable. Possibly the requisite proof of control of the hi-lo can be furnished on a new trial. It was incumbent upon the plaintiff to establish that the hi-lo and the operator thereof were supplied by Allied. The defendant-appellant's limited admissions in its answer, taken together, do not sufficiently connect it with the offending hi-lo. The plaintiff did not identify the owner or the operator of the hi-lo utilized to unload his trailer. In order to sustain his burden of proof, plaintiff was required to prove that on December 22, 1948 all of the hi-lo machines used on Pier 84 were owned and operated by Allied, or that Allied exclusively unloaded goods from trucks on Pier 84, or that plaintiff's was the only motor vehicle of Dunwell Service Inc., serviced by a hi-lo.
Concur — Botein, P.J., M.M. Frank, McNally and Stevens, JJ.