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[141 N.Y.S.2d 425] Herbert L. Fine, New York City, of counsel (Milton Morgenstern, New York City, attorney), for plaintiff-appellant.
James M. Gilleran, New York City, of counsel (John J. O'Connor, New York City, attorney), for defendant-respondent.
Before PECK, P. J., and COHN, BASTOW, BOTEIN and RABIN, JJ.
Plaintiff, employed as a truck driver, brings this action against defendant, a truck renting corporation, for personal injuries sustained by plaintiff during the course of his employment. The truck had been rented from defendant by plaintiff's employer. From a judgment entered in favor of defendant upon a unanimous verdict of a jury, plaintiff appeals.
The accident complained of occurred while plaintiff was entering the rear of defendant's truck for the purpose of loading it. The truck was box-shaped and its floor was about four feet above the ground; a steel step was attached to the rear section about two feet below the floor of the truck; a hemp rope was affixed to a bar near the top of the truck which was used as an aid in entering. Plaintiff testified that in order to board the rear of the vehicle, he raised his right foot onto the metal step, which he claimed was loose because of missing and defective bolts; that [141 N.Y.S.2d 426] he then utilized the rope as leverage to swing his left foot onto the platform of the truck; that the metal step shifted inward forcing him to put his whole weight on the rope and caused it to snap. He fell backward to the ground striking his back and head and injuring his left hand.
Plaintiff testified that prior to the occurrence of the accident he had repeatedly complained to defendant in writing and orally about the defective condition of the step at the rear of the truck. He attributes his fall and the resulting injuries of which he complains to the sudden shifting of the step under pressure. After the accident, plaintiff walked to a doctor's office a block away, was treated for superficial injuries to his hand and remained away from work for four days. Thereafter, he continued working as a truck driver for the same employer for a full year. He was then compelled to give up his employment because of dizziness, headaches and nervousness, claiming that he was suffering from a postconcussion syndrome. Two physicians called in his behalf testified, in substance, that as a result of the accident, while plaintiff had no permanent physical injuries, he was suffering from a neurosis which might turn into a schizophrenia.
Upon the trial it was plaintiff's claim that the defective condition of the metal step attached to the back of the truck was the primary cause of the accident and that defendant's failure
to repair this condition after due notice was the negligence for which the latter was liable.
In cross-examining plaintiff and for the purpose of impeaching his credibility, defendant's attorney offered in evidence a document in the handwriting of plaintiff which was an employee's claim for compensation filed by him with the Workmen's Compensation Board. In this document plaintiff had made no reference to the existence of a defective step on the truck and apparently attributed the accident solely to the fact that the rope had snapped. In answer to the question as to how the accident occurred, plaintiff stated therein: 'Fell off the back of the truck about four feet high. The rope snapped as I was climbing up, falling on my back, head and left arm.' The portion read to the jury also indicated that plaintiff had been away from his employment for three days and that he had given immediate notice of the injury to his employer. It also contained a statement that plaintiff was presenting: 'my claim to the Chairman, Workmen's Compensation Board, for compensation for disability resulting from an accident arising out of and in the course of my employment'. The writing was offered and received in evidence over objection and exception for the purpose of contradicting the testimony of plaintiff upon the trial. For such purpose it was clearly competent. Plaintiff, in re-direct examination through his own attorney, pursued the question of workmen's compensation by asking plaintiff whether he had received a 'penny of disability benefits' or compensation of any kind from the Board. He was properly permitted to testify that he had not.
[141 N.Y.S.2d 427] It is well-settled law that in a civil action the admissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever or to whomsoever made. Reed v. McCord, 160 N.Y. 330, 341, 54 N.E. 737, 740; Jacobs v. Gelb, 271 A.D. 101, 104, 62 N.Y.S.2d 782, 784. The proof need not be direct and positive contradiction; it is enough that the testimony and the statements are inconsistent and tend to prove differing facts. Larkin v. Nassau Electric R. Co., 205 N.Y. 267, 269, 98 N.E. 465, 466; McCoy v. Gorenstein, 282 A.D. 984, 125 N.Y.S.2d 683; Kesten v. Forbes, 273 A.D. 646, 78 N.Y.S.2d 769; Nagel v. Paige, 264 A.D. 231, 35 N.Y.S.2d 321.
Where a plaintiff employed by another sues a third party for personal injuries sustained during the course of his employment, it is, of course, improper to offer evidence that plaintiff may procure compensation from his employer if he is unsuccessful in his attempt to secure damages from the ...