Opinion
February 6, 1961
In an action to recover damages for personal injuries, in which, at the end of plaintiff's case, the complaint was dismissed against defendant Pillsbury and against the defendant railroad, the defendants Rosenzweig (copartners doing business as G. R. Packing Company, and sued under that name) appeal, as limited by their brief, from an order of the Supreme Court, Kings County, dated March 2, 1960, which granted plaintiff's motion, made pursuant to section 549 of the Civil Practice Act, to set aside the jury's verdict in favor of the Packing Company, and directed a new trial. Plaintiff, a longshoreman, sustained the injuries when a heavy carton, weighing about 50 pounds or more, fell and struck his head as he and other longshoremen opened the door of a freight car preparatory to unloading it. The Packing Company had packed the car at its loading platform about one-half mile away. The company had not installed any bracing or fencing at the door of the car to prevent any of the freight from shifting or falling. It was claimed that its failure so to do constituted negligence. Order reversed, with costs, plaintiff's motion to set aside the jury's verdict in favor of the Packing Company denied, and verdict reinstated. There was testimony that it is the custom and usage in the trade not to use bracing or fencing for a short haul over a level track, as in the case at bar. No claim is made that errors of law occurred at the trial or that prejudicial conduct improperly influenced the verdict. On the proof adduced, it may not be held that the evidence preponderates so greatly in favor of plaintiff as to establish that the jury's verdict for the defendant Packing Company "could not have been reached upon any fair interpretation of the evidence" ( Olsen v. Chase Manhattan Bank, 10 A.D.2d 539, 544; cf. Scheuerman v. Knapp Coal Co., 238 App. Div. 874). Nolan, P.J., Beldock, Christ, Pette and Brennan, JJ., concur.