negligence in bumping into pedestrian while walking back to truck during unloading
How later courts described this case
- negligence in bumping into pedestrian while walking back to truck during unloading
- narrow definition of loading “includ[es] only the immediate act of placing [objects] upon the vehicle, [and] ... excludes, unlike the broad definition,] the preliminary acts of bringing [objects] to the vehicle ... ”
- doctrine applies to “commercial pickups and deliveries”
- no express exclusionary provision; burden on insurer to establish violation of regulations
Written by the judges who cited it.
Distinguished
Distinguished by Walton v. Lumberman's Mutual Casualty Co., 162 Misc. 2d 560 (1994)
Defendant, on the other hand, argues that the Wagman rule is inapplicable and that the test announced in Matter of Manhattan & Bronx Surface Tr.
The opinion
Froessel, J.
(dissenting). The issue before us is aptly stated in the prevailing opinion. Assuming that we are inclined in this State toward the ‘ ‘ complete operation ’ ’ theory in determining what constitutes the loading of a vehicle, these words are not a formula that embraces everything that may have been done prior to the immediate effort of loading. The line of demarcation must be reasonably drawn. As the trial court said in Zurich Gen. Accident & Liability Ins. Co. v. Eagle Ind. Co. (unreported, affd. 279 App. Div. 574 , motion for leave to appeal denied 303 N. Y. 1016 ), it is a “ question of degree.” There, a safe door was but thirty-six inches away from the truck and the insured truck had actually been hired by the shipper.
The “ immediate effort ” of loading may encompass the movement of goods from the premises of the shipper, where they have been made ready for shipment, to or upon the carrier’s vehicle. In the case at bar, however, for reasons considered by them to be good and sufficient, and obviously dictated by the tariff schedule filed by the motor carrier with the Interstate Commerce Commission, the parties agreed to and carried out a different arrangement. The carrier did not pick up goods from the premises, but, instead, its employees deliberately refrained from leaving the truck, and picked up the merchandise from the curb in front of the premises, pursuant to the aforementioned agreement. Plaintiff took no part in the loading of the truck, but merely counted and checked the garments for inventory purposes as they were brought out from the store to the curb, at which latter point they were made ready for pickup and shipment. This too was in pursuance of his employer’s agreement with the carrier. Plaintiff was thus *499 carrying out a duty to Ms employer wMch would ordinarily be performed inside the store and might well have been done hours, or an entire day, before; the risk to pedestrians thus created — and here resulting in injury — was not one which accompanied this loading, and was therefore not one which would be within the contemplation of the insurer and the carrier in entering into the insuring agreement.
In the light of these considerations, it is my conclusion that plaintiff was not engaged in loading the vehicle when the accident occurred. In the circumstances disclosed by this record, the loading was limited by the prior agreement of the carrier and shipper to the operation of removing the goods from the sidewalk at the curb to the truck, and this was concededly accomplished by the employees of the carrier. Plaintiff’s activities on the public sidewalk on behalf of Ms employer therefore cannot reasonably be said to have been part of the loading operation. It follows that he was not using ” the truck ££ with the permission of the named insured ’ ’ or otherwise.
The judgment appealed from should be reversed, and the complaint dismissed, with costs against plaintiff-respondent.
Loughran, Ch. J., Lewis, Conway, Desmond and Dye, JJ., concur with Fuld, J.; Froessel, J., dissents in opinion.
Judgment affirmed.