Opinion
December 31, 1954.
Present — Nolan, P.J., Wenzel, MacCrate, Beldock and Murphy, JJ.
In an action to recover damages for personal injuries alleged to have been caused by negligence, plaintiff appeals from a judgment entered on the dismissal of the complaint at the close of his case. The evidence established that plaintiff had been requested by defendant to assist him in the preparation of certain pipes to be used by defendant in driving a well. While plaintiff was standing behind defendant, defendant, in attempting to release a chain wrench from a pipe, struck the wrench with a hammer, causing a chip to break off one of the teeth of the wrench and to fly into one of plaintiff's eyes. Judgment unanimously affirmed, with costs. (Cf. Halverson v. 562 West 149th St. Corp., 290 N.Y. 40.)