Arrigo v. Conway

36 A.D.2d 215, 319 N.Y.S.2d 923, 1971 N.Y. App. Div. LEXIS 4317

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 8, 1971
• Status: Published

Opinions

Moule, J.

Plaintiff and defendant Conway were traveling southerly on a four-lane highway which had two lanes for southbound traffic and two lanes for northbound traffic, separated by a double yellow line. After a number of unsuccessful efforts plaintiff passed the Conway car, and then stopped for a red traffic light at an intersection. It was dark and the lighting in the area of the intersection was poor. Plaintiff testified that while stopped, his car was struck in the rear by the Conway car; that he left his car and went back to Conway’s car, which was standing 8 to 12 inches from the center line of the highway, and as he walked past the left door Conway opened it at about a 90-degree angle. Conway claimed that plaintiff put his hand on the knob of the left door and opened it about 80 degrees, causing it to extend over the double yellow line. While plaintiff was standing behind the open car dobr, it was struck by defendant Van Schoonhoven’s car, which was traveling north, and the door, in turn, struck plaintiff in the back. Conway and Van Schoon- • hoven testified that the door extended over the double yellow line. Plaintiff apparently did not know whether it did, since he merely testified,' ‘ To my knowledge it was not over the double yellow line.” Defendant Conway denied striking plaintiff’s car and said that plaintiff opened the door. The driver of another car stopped at the intersection testified that Conway’s car did not strike plaintiff’s car. He said that plaintiff got out of his car, grabbed Conway’s door handle fast, opened the door, stepped in between the door and the car, and was struck by the door all within a few seconds.

The court properly charged the jury that if plaintiff’s car was ■ not struck by Conway’s car, plaintiff’s presence on the highway without explanation was contributory negligence as a matter of law. Contributory negligence is conduct which falls below the standard to which a plaintiff should conform for his own protection. (Volosko v. Interurban St. Ry. Co., 190 N. Y. 206; Restatement, Torts 2d, § 463.) It is elementary that the plaintiff had a duty to look to his own safety. (Mignery v. Gabriel, 2 A D 2d 218, affd. 3 N Y 2d 1001.) In Morales v. Rothke (22 A D 2d 870, affd. 18 N Y 2d 913), plaintiffs, who walked on a busy highway with their backs to oncoming traffic, were held to be contributorily negligent as a matter of law. In Rossman v. La Grega (32 A D 2d 675), the decedent, who stood in the roadway to warn traffic of a disabled vehicle, was held to be contributorily negligent as a matter of law.

The dissenters would distinguish Morales and Rossman from this case on the grounds that in those cases ‘ ‘ the injured plaintiff was in defendant’s lane of traffic ”. Although plaintiff, in this case, may have been on the. southbound side of the road, the only positive evidence established that the door of Conway’s car was opened so wide that it projected into the northbound lane. Plaintiff stood between it and the car and anyone driving northbound striking the car door would cause it to strike plaintiff. If plaintiff’s car was not struck by Conway’s, there was no reason for him to be out in the middle of the highway with his back to oncoming traffic. He put himself in a position of danger and cannot be heard to complain of the consequences.

The judgment should be affirmed.