Claim of Emerick v. Dale's Motor Truck Service, Inc.

Hill, P. J. As the truck approached the witness Wilcox it was moving in a normal way following a usual course along the highway. [232] After deceased fell, it was brought to a normal stop. These facts will sustain a finding that Kelly, the second driver, had moved over into the driver’s seat and that Emerick, to save the time of a stop, was going over the hood to take his place on the right. The circumstances dispute Kelly’s assertion that he was sleeping until just prior to Emerick’s fall. However, an award would be proper in this case if we adopt Kelly’s version that he was sleeping, but it probably would be necessary to remit the case to give the Board opportunity to consider the making of a corresponding finding of fact. When Kelly last saw Emerick he was working, and there is a presumption that he continued. (Norris v. N. Y. C. R. R. Co., 246 N. Y. 307.) Nothing in Emerick’s conduct indicated an intention to abandon the truck. The fact that his act was highly negligent and careless does not prevent an award. Rhodes, Bliss and Heffernan, JJ., concur; McNamee, J., dissents, with an opinion.