Larsen v. First National City Bank , 191 N.Y.S.2d 147 ( 1959 )

In an action to recover damages for personal injuries, the appeal is from a judgment entered on a dismissal of the second amended complaint at the close of appellant’s ease. Appellant was injured during the course of his employment when he fell from a sectional metal ladder attached to an independent pole scaffold, which equipment had been manufactured by one of the respondents and sold by the other respondent, as distributor of the manufacturer’s products, to appellant’s employer. Judgment affirmed, with costs. No opinion. Wenzel, Beldock, Murphy and Ughetta, JJ., concur; Nolan, P. J., dissents and votes to reverse the judgment and to grant a new trial, with the following memorandum : While there is no doubt that appellant knew of the method by which these ladders are assembled and disassembled, nevertheless a jury question was presented as to whether he knew, or whether on reasonable inspection he should have discovered, the danger inherent in their construction when assembled and used for their intended purpose. Under all the circumstances it was for the jury to say whether the accident occurred by reason of a latent dangerous defect in the construction of the ladders, which was not discoverable by reasonable inspection. Hence, it was error to dismiss the second amended complaint, as a matter of law, at the close of appellant’s case. It is also my opinion that it was error to exclude the evidence as to general custom in fastening or securing ladders such as those involved in this accident (Shannahan v. Empire Eng. Corp., 204 N. Y. 543).