Donnelly v. Kilby Bros. , 36 N.Y.S.2d 38 ( 1942 )

Defendant appeals from a judgment in favor of the plaintiff for $18,688.23 entered in the Albany county clerk’s office on February 13, 1942, upon the verdict of a jury; and also from an order denying a motion to set aside the verdict and for a new-trial on account of the alleged misconduct of a juror. Plaintiff was injured while employed as a structural iron worker in the erection of a part of an incinerator and garbage plant at Watervliet. At the time he was handling the top member of a truss. This was a long piece of steel which had been placed so that one end projected outside of the framework of the building under construction. The defendant had a subcontract to fill and grade the grounds about the plant, and used a number of trucks to haul and dump dirt. It was the contention of plaintiff that one of defendant’s drivers negligently operated a truck so that it struck the truss member upon which plaintiff was working and thereby caused his injuries. The jury have so found and the evidence is sufficient to sustain their verdict. In view of the injuries sustained we do not think the verdict is excessive. On its motion to set aside the verdict because of the alleged misconduct of a juror defendant failed to show facts that would have required the trial court to grant such relief. Judgment and order appealed from unanimously affirmed, with costs. Present — Hill, P. J., Bliss, Heffernan, Schenek and Foster, JJ.