McNulty v. Sunset Warehouses, Inc. 256 A.D. 821

Judgment reversed on the law and a new trial granted, with costs to appellant to abide the event. Appeal from order dismissed. Plaintiff, a truckman, while engaged in receiving merchandise, consisting of bags of almonds each weighing 110 pounds, from defendant’s warehouse to his track, was struck and injured by one of the bags, for which injuries he was awarded a verdict resulting in the judgment under review. The bags were delivered from the third floor of the warehouse by sliding them down a chute to the plaintiff’s track, which was in the street in front of the warehouse. Plaintiff’s theory is that defendant’s employee was negligent in that he sent the bags down the chute in such rapid succession that he was unable to handle them, notwithstanding warnings to that effect. We think questions of contributory negligence and of the negligence of the defendant, as well as the question of whether the consequences of continuance by plaintiff to receive the merchandise in the manner in which it was delivered were so obvious that plaintiff, as a reasonable man, had them in mind, and with such knowledge took the risk, were for the jury. We are of opinion, however, that the trial court erred in charging the jury, at the request of plaintiff’s counsel, in effect, that the jury could find the defendant negligent if its employee knew that plaintiff was working in front of the chute and that he was warned to refrain from sending the bags down the chute “ in such rapid fashion.” This eliminated entirely the questions as to whether or not the bags were delivered slowly or rapidly and, if rapidly, whether or not such delivery constituted negligence. The claim of the counsel for the respondent is that the instructions set forth in the main charge are sufficiently explicit. With that claim we are not in accord, particularly since the erroneous instruction constituted the last words to the jury before they began their deliberations, and upon this record it cannot be said to be harmless. (JBurd v. Bleischer, 208 App. Div. 499-502.) Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.