Kondas v. Gallo Original Iron Works, Inc. , 190 N.Y.S.2d 602 ( 1959 )

Action by John Kondas, the driver of a truck employed by a manufacturer of steel rods, to recover damages for personal injuries sustained while unloading a shipment of steel rods from the truck against Gallo Original Iron Works, Inc., the consignee of the steel rods. Gallo brought a third-party action for judgment over against Edelio Parcial, one of its employees who assisted in the unloading of the truck at the premises of Gallo, alleging that Parcial was actively negligent. Parcial brought a fourth-party action for judgment over against the Cosmopolitan Mutual Casualty Company of New York, the insurer under an automobile liability policy of the truck, alleging that he was insured under said policy. Cosmopolitan brought a fifth-party action for judgment over against Gallo alleging that Gallo was actively negligent. The parties stipulated to leave to the court the disposition of the third-party, fourth-party and fifth-party actions. The court submitted to the jury the issues in the main action with two questions to be answered by the jury if they found a verdict in favor of Kondas. One of these questions was whether Gallo had provided a safe place for Kondas to work in delivering the merchandise. The jury rendered a verdict in favor of Kondas against Gallo and answered both questions in the negative. The court dismissed the third-party, fourth-party and fifth-party complaints. Gallo appeals from so much of the judgment entered thereon as is in favor of Kondas against it and as dismissed its third-party complaint against Parcial. Parcial appeals from so much of said judgment as dismissed his fourth-party complaint against Cosmopolitan. Judgment insofar as it is in favor of Kondas against Gallo and insofar as it dismisses the third-party and fourth-party complaints reversed, and a new trial granted, with costs to appellants to abide the event. The evidence is insufficient to constitute proof that Gallo failed to provide Kondas with a safe place to work, and a question based on such theory should not have been submitted to the jury. It was error to permit Kondas, over objection, to introduce evidence of personal injuries which were not set forth in the complaint nor the bill of particulars. Consistent with the foregoing, the portion of the judgment which dismisses the indemnity complaints must be reversed insofar as appeals are taken therefrom. Nolan, P. J., Beldock, Murphy, Ughetta and Hallinan, JJ., concur.