Townes v. Park Motor Sales, Inc. , 180 N.Y.S.2d 553 ( 1958 )

M. M. Frank, J.

In this action, charging common-law negligence, the trial court set aside the verdict in favor of the plaintiff, and dismissed the complaint. The plaintiff appeals from the judgment entered upon that determination.

It is not disputed that the plaintiff, Uly L. Townes, an independent contractor, started his own business of simonizing, polishing and washing cars about four months before the accident, in a five-story building occupied by the defendant, an automobile agency. Prior thereto, the plaintiff had been an automobile mechanic and painter for. 20 years. The space assigned to him was located in the basement of the premises and comprised an area approximately 40 by 50 feet, including a washrack 10 by 20 feet. A sink was attached to one wall, and, nearby, a 16-foot hose, used by the plaintiff for washing cars, was connected to a wall faucet. The plaintiff, the only person who regularly worked in the basement, serviced from 50 to 100 automobiles each week, supplying his own material and equipment.

The initial incident that triggered the series of events culminating in the injury suffered by the plaintiff occurred as he stood on a ladder buffing the top of an automobile. In plying that task he was using an electrically driven buffer operating at a speed of 23,000 r.p.m., on which he had placed a new lamb’s wool bonnet about seven inches in diameter. While the plaintiff was holding the device for the purpose indicated, the bonnet “ burst up into flame.” Townes thereupon shut off the motor of the machine, descended the ladder and laid the flaming buffer on the floor. He attempted to stamp out the flames with his feet, but this effort proved futile. He then ran to a corner of the rack and picked up a fire extinguisher which he found to be empty. Hurrying back, Townes once more unsuccessfully trampled on the fire. Finally, he seized a bucket of sand that stood close by and attempted to smother the fire by spreading sand over it, a handful at a time, while repeatedly stamping on it with his feet. It was not until this point in the entire occurrence that Townes was injured, when his coverall caught fire and he was burned on the leg. His hands were burned in beating his ignited garment.

The plaintiff claimed that the defendant was negligent in two respects: first, that it permitted grease, oil and gasoline to collect on the floor; second, that it failed to provide a proper fire extinguisher. We cannot find any causal relation between the failure to supply a workable fire extinguisher and the injury suffered by the plaintiff. Other means were available to Townes for extinguishing the fire. There were two separate sources of water at hand, as well as the bucket of sand. He disregarded the former and ineffectually made use of the latter. From his own testimony it is evident that he placed reliance on the patently dangerous procedure of stamping the fire with his feet, both before and after attempting to resort to the fire extinguisher.

We must assume from the verdict for the plaintiff, that the jury found all the facts in his favor that have reasonable support in the evidence. In setting aside the verdict and dismissing the complaint, the trial court held, in part, that the plaintiff had used a buffer that was not in proper condition and thus had created an emergency.

We cannot agree with that conclusion, for implicit in the verdict was a finding that the jury believed the plaintiff’s explanation that the fire had not been caused by a defective buffer. There was no proof that the machine itself was defective other than the plaintiff’s testimony that it emitted sparks.

The plaintiff testified that the floor was caked with an accumulation of grease, gasoline and oil, one quarter of an inch thick. Significant, too, was his statement that on several occasions he spread sand on grease that had dripped from cars. It is clear that whatever the state of the floor with respect to grease, oil and gasoline, the plaintiff was completely and fully aware of the condition for the several months that he occupied the premises. Moreover, he participated in the continuance of that condition by moving cars to and from the area. If his activities added combustible material to the incrusted surface, he was responsible for it. Additionally, it is an obvious and appropriate inference from the evidence that, in his work, some wax and other compound necessarily fell on the floor. Hence, the very condition that the defendant tolerated was one that the plaintiff, too, permitted to exist and in some measure aggravated. Consequently, the same proof upon which the plaintiff relied to establish the defendant’s negligence also established his own contributory negligence.

In Shields v. Van Kelton Amusement Corp. (228 N. Y. 396, 398), the Court of Appeals, in dismissing the complaint after a verdict for the plaintiff, stated: “'if it could be held that the defendant was negligent, the same evidence establishes that tim plaintiff herself was equally so.”

Although written in a different context (McFarlane v. City of Niagara Falls, 247 N. Y. 340, 347), these quoted words of Chief Judge Cabdozo are quite" relevant to the issue here: “ The rule to be extracted from these and like cases * * * may now be formulated. At least where the substance of the wrong is negligence, a plaintiff, * * * is under a duty to show care proportioned to the danger. Reasonable care is merely care so proportioned. The danger may be seen or unseen. If seen, there must be effort to avoid it.”

If that rule is applied to the facts in this case, it is evident that Townes did nothing to eliminate or avoid the hazard that confronted him daily. While the question of contributory negligence is ordinarily one for the jury, there are cases where the undisputed facts permit but one conclusion. ■, This, in our view, is such a case. If one is conscious of a danger arising from the negligence of another, he is not privileged to ignore it. If he continues to subject himself to it, by his own conduct he bars a recovery for any consequent injury. To express it somewhat differently, it may be said that when a plaintiff exposes himself to a known danger, he must use ordinary care to avoid being injured, and if safe courses are available, it cannot be held that ordinary care is exercised under such circumstances. (1 Warren, New York Law of Negligence, § 9, par. 8, subd. [a]; Utica Mut. Ins. Co. v. Amsterdam Color Works, 284 App. Div. 376, 379, affd. 308 N. Y. 816; Conroy v. Saratoga Springs Auth., 259 App. Div. 365, 368, affd. 284 N. Y. 723; Shields v. Van Kelton Amusement Corp., 228 N. Y. 396, supra; Griffin v. State of New York, 250 App. Div. 244.)

In an action based upon negligence, absent the doctrine of last clear chance, one may not place himself in a position of danger created by the negligence of another and seek to recover damages when that danger results in harm. (Storr v. New York Cent. R. R. Co., 261 N. Y. 348; Monacelli v. State of New York, 295 N. Y. 332.)

Here, the record is clear that the defendant did not create the emergency. The only negligence attributable to the defendant, that was causally connected to the plaintiff’s injury, consisted in its permitting grease, oil and gasoline to accumulate on the floor. There is no dispute that the defendant did not cause the fire and that it did not own or control the machine from which the sparks issued. Upon this staté of facts, the doctrine that one placed in a position of danger by another is not to be deemed guilty of contributory negligence for failure to exercise his best judgment in an emergency does not apply. (La Plante v. State of New York, 200 Misc. 396 [and cases cited], affd. 278 App. Div. 739, affd. 303 N. Y. 648.)

With the floor in the condition he described, Townes knew or should have known that the peril of fire was ever-present. The record is devoid of any proof that he did anything to correct or ameliorate the condition, or to call it to the attention of the defendant. His exposure to any danger attendant upon it was of his own choice.

When the buffer caught fire, there were several courses that the plaintiff might have taken other than the one he pursued. It should be noted that Townes placed the buffer on the floor at a point two flagstones away from the rack which, from the testimony, was free of grease, oil or gasoline. Without risk of injury, he could have placed the buffer in the adjacent sink to contain the flames, or quench them by turning on the faucet. Alongside the rack lay the water hose that he regularly used for washing cars. He could have set the buffer on or near the rack and played the hose on it with perfect safety, inasmuch as the motor was turned off. Instead, despite his full awareness of the hazardous condition of the floor, he chose to put the flaming buffer upon it.

Thus, in the face of multiple choices, the plaintiff elected to follow the one course that exposed him to the danger, when the others did not. Under such circumstances he may be held guilty of contributory negligence as a matter of law. (Utica Mut. Ins. Co. v. Amsterdam Color Works, 284 App. Div. 376, 379, affd. 308 N. Y. 816, supra.)

Accordingly, the judgment should be affirmed on the law, with costs to the respondent.