Opinion
September, 1935.
Present — Sears, P.J., Taylor, Thompson, Crosby and Lewis, JJ.
Judgments reversed on the law and action as to defendant Mertens remitted for an assessment of damages and as to defendant Vincelli a new trial is granted, with costs to the appellant to abide the event.
The defendant Mertens having defaulted in pleading the plaintiff was entitled to recovery of damages against him upon an assessment. As to the defendant Vincelli the negligence of Mertens is material for there was evidence sufficient to support a finding that Mertens was an employee of defendant Vincelli. In our opinion a question of fact as to Mertens' negligence was presented by the evidence. Before starting to back his truck the defendant Mertens looked in the direction where the deceased was working. He saw men working near the course, if not actually in the course, he was to take while backing his truck. Mertens testified that he was unable to say when he looked whether or not any one was actually within that course. Mertens then proceeded to back without warning to the men and struck plaintiff's intestate after backing scarcely more than a truck length. There was evidence from which the jury could have found that the plaintiff's intestate was working with his face away from the approaching truck and was in the place where he was struck when the truck began to back. Under these circumstances the question of defendant Mertens' negligence was for the jury. The plaintiff's evidence did not establish the contributory negligence of his intestate as matter of law. All concur, except Taylor and Crosby, JJ., who dissent as to defendant Vincelli and vote for affirmance as to him. (The judgments were for defendants in an automobile negligence action.)