Employers Mutual Liability Insurance Company Wisconsin v. Aetna Casualty and Surety Company

Submission of a controversy upon an agreed statement of facts. Judgment unanimously directed for defendant, without costs.
In our opinion the stipulated facts fail to show that the injuries to a named pedestrian resulted from the negligence of defendant's
insured in the loading or unloading process described therein. So far as the stipulated facts indicate, the employees on the
truck of the defendant's insured had lined the "skids" up against the building of the consignee, plaintiff's insured, or at
the curb, had tucked ropes under the wheels of the skids to keep them from rolling, had then left the situs and had been gone
for an hour and 40 minutes before the pedestrian tripped and fell over a rope lying on the sidewalk. Concededly, the skids
were to be taken into the consignee's premises by its own employees. There is no suggestion in the stipulated facts as to
how the rope in question had worked loose from under the wheels. Under these circumstances, no inference may be drawn by this
court from the stipulated facts that the carelessness of the employees on the truck of the defendant's insured caused the
pedestrian to trip over the rope (Ushing v. Commercial Cas. Ins. Co., 251 N. Y. 302, 305; Alexander T. Stephan, Inc. v. Bank
of United States, 236 App. Div. 280, 282; Russel v. Russel, 3 A.D.2d 1007; Town of Pelham v. City of Mount Vernon, 304 N.
Y. 15, 18). Nor may the court consider a statement of fact appearing only in the brief of a party (McGoldrick v. Bodkin, 140
App. Div. 196, 197). Present - Nolan, P.J., Wenzel, Beldock, Ughetta and Hallinan, JJ.