Adler v. Long Island Railroad Co. (271 A.D.2d 792, 1946)

Action to recover damages for personal injuries sustained as a result of a defective boom on a truck owned and operated by defendants Ascenzo. Respondent Long Island Railroad Company was engaged in a grade crossing elimination project, and respondent Tully & Di Napoli, Inc., was the general contractor. Plaintiff was an employee of Granite Quarries, Inc., a subcontractor of respondent Tully & Di Napoli, Inc., which was to furnish and erect the granite work. The truck of defendants Ascenzo was used to cart granite from a freight yard of respondent Long Island Railroad Company, where it arrived from the quarry, to a storage yard near the site of the construction operations. The freight yard was one-half to one mile distant from the storage yard. The accident occurred at the freight yard when plaintiff was struck by part of the boom on the Aseenzos’ truck, which fell on him during the course of his work for Gránite Quarries, Inc, At the close of plaintiff’s case, the complaint was dismissed as to the respondents, and the action severed and a mistrial declared as to the defendants Ascenzo. Plaintiff appeals from that part of the judgment which dismissed the complaint as against respondents. Judgment, insofar as appealed from, affirmed, with one bill of costs. Plaintiff failed to establish any cause of action against respondents. {Moore V. 'Wills, Inc., 250 N. Y. 426; Iacono V. Frank & Frank Contracting Co., 259 M". Y. 377.) Present — Lewis, P. J., Hagarty, Johnston, Adel and Aldrich, JJ. [See post, p. 883.]