Opinion
May 26, 1941.
Action brought to recover damages for personal injuries sustained by plaintiff when a truck rented by plaintiff's employer from the defendant rolled away from a loading platform on which plaintiff was working, as a result of which plaintiff fell from the platform. Judgment in favor of plaintiff reversed on the law and a new trial granted, with costs to appellant to abide the event. The trial court erred in refusing to charge the jury that the plaintiff could not recover if it were found that the plaintiff's fellow-employee, the driver of the truck, was negligent and that his negligence was a concurring proximate cause of the accident. (Workmen's Compensation Law, § 29, subd. 6, Laws of 1937, chap. 684; AEtna Cas. Surety Co. v. Gronholz, 261 App. Div. 961; motion for leave to appeal denied, 285 N.Y. 855, April 24, 1941.) It was conceded that plaintiff had been awarded compensation. His employer, a self-insurer, therefore, had a lien on the proceeds of the recovery under subdivision 1 of section 29 Work. Comp. of the Workmen's Compensation Law. To permit the employer to recoup the compensation payments in spite of concurrent negligence on the part of its employee would enable it to profit by its own wrong. Lazansky, P.J., Hagarty, Johnston, Taylor and Close, JJ., concur.