Mathews v. Pittsburgh Plate Glass Co. , 247 A.D. 729 ( 1936 )

The plaintiff, walking near the center of the sidewalk of Main street in White Plains, walked against and into a sheet of glass, nine feet by eleven feet, that was being delivered from defendant’s truck to the premises in front of which the truck was parked. The glass reached almost from the curb to the building. When plaintiff came in contact with it, it broke and he was injured. He brought this action for damages. At the close of the entire ease the complaint was dismissed on the ground that plaintiff failed to establish negligence on the part of defendant and his own freedom from contributory negligence. Judgment reversed on the law and a new trial granted, costs to abide the event. It cannot be said as matter of law that plaintiff was negligent in walking into this transparent object which obstructed his pathway and as to the presence of which he received no warning; nor can it be said as matter of law that defendant, in the circumstances, was free from negligence. These questions, therefore, should have been submitted to the jury. While there is evidence to show that at the time of the accident the glass was under the control of the parties to whom it was being delivered, there is also evidence to show that defendant’s driver was holding the top part of the glass. Whether in so doing he was acting in furtherance of defendant’s business or merely as a volunteer was also a question of fact for the jury. Hagarty, Carswell, Davis, Johnston and Adel, JJ., concur.