Midgett v. Mastropoalo

277 A.D.2d 792

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 1950
• Status: Published

Opinion

Plaintiff’s son, who had rented a luggage trailer from defendant, went to defendant’s premises in company with plaintiff to return the trailer. When they arrived, they found defendant’s place of business closed and the premises in darkness. There was proof, which the jury could have credited, that the trailer was being returned at that time pursuant to defendant’s request. Plaintiff, who had waited near a fence on the premises while his son looked for a place to leave the trailer, fell into a grease pit near the fence as he was proceeding to join his son in response to a call from him. Judgment, entered on the verdict of a jury in favor of plaintiff, reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs. In our opinion, on this record, plaintiff was guilty of contributory negligence as a matter of law in walking in darkness in a strange place, without exercising any degree of caution for his own safety. (Cf. Hudson v. Church of Holy Trinity, 250 N. Y. 513; Rohrbacher v. Gillig, 203 N. Y. 413; Brown v. Associated Operating Co., 105 App. Div. 702, affd. 222 N. Y. 566; Hruska v. Stewart & Co., 297 N. Y. 829; Elliott v. Dahl, 299 Mich. 380.) Nolan, P. J., Johnston, Sneed, Wenzel and MaeCrate, JJ.,,concur.