Opinion
July 2, 1970
In a negligence action to recover damages for personal injury, defendant appeals from a judgment of the Supreme Court, Kings County, entered March 26, 1969, in favor of plaintiff upon a jury verdict. Judgment reversed, on the law and the facts, with costs, and complaint dismissed. The primary question is whether plaintiff's conduct constituted contributory negligence as a matter of law and so barred recovery for his injuries. Plaintiff rented a truck for use in his business in Brooklyn from defendant. In the spring of 1964 he returned the truck to defendant and sought employment in Binghamton, New York. He applied for a job as a truck driver to Lane Construction Company, which was engaged in construction work, and was told by Lane that Winona Construction Company supplied the trucks to the job, but that no truck was then available. After waiting for about two weeks, plaintiff learned that defendant's truck was now in Binghamton. Winona rented the truck from defendant; and plaintiff was then able to obtain employment from Lane in July, 1964. However, before he began driving the truck, certain repairs costing about $1,500, paid for by defendant, were made to the truck. The truck was equipped with a dump body which was operated manually. In the early part of August, 1964, while he was driving the truck in the open, the body went up by itself; he reported the incident to a foreman of Winona and was then told to take the truck to a mechanic. Upon inspection, the mechanic told plaintiff that the gears were worn and that repairs costing about $200 were necessary. The mechanic also warned plaintiff that the body could rise again and that he should be careful in operating that truck. Plaintiff then informed defendant of what had occurred and was told by defendant that he could not afford to have the truck immediately repaired. Plaintiff tried to obtain another truck; none was available and he continued to drive the truck for Lane. About two weeks later, on August 19, 1964, after the truck had been unloaded, plaintiff was injured when the body lifted and struck a bridge while he was driving beneath it. He brought this action to recover damages arising from his injuries on the theory that defendant was under a duty to furnish a truck reasonably safe for the use to which it was put, was informed of the defective condition of the gears, and hence was under a duty to repair the truck. We think that defendant could properly be held responsible for his failure to repair the truck, once he knew that its worn and defective gears were liable to activate the truck body into a vertical position. But we think that equally was plaintiff guilty of contributory negligence in continuing to drive the truck when he had first-hand knowledge of the same defective condition. He thus exposed himself to a known danger and understood, or should have understood, that the raising of the body might lead to a collision with the bridge under which he was accustomed to operate the truck (cf. Utica Mut. Ins. Co. v. Amsterdam Color Works, 284 App. Div. 376, 379, affd. 308 N.Y. 816; cf. Seidman v. M R Air Conditioning Corp., 15 N.Y.2d 814). The knowledge of the driver of a motor vehicle that it has a serious mechanical defect prevents him from a recovery of damages for personal injuries incurred from an accident caused by that defect (cf. Fried v. Korn, 286 App. Div. 107, affd. 1 N.Y.2d 691; Brady v. Gardner, 20 A.D.2d 858). Nor do we think that plaintiff's negligence is excused because the accident occurred in the course of his work. It is sometimes said that an employee placed in the position of either abandoning his work or being charged with negligence if he proceeds will not be penalized when he is injured through his election to follow the course of his work ( Kaplan v. 48th Ave Corp., 267 App. Div. 272). But in our opinion that doctrine cannot apply to this case. First, plaintiff was under no direction from defendant to proceed — indeed, defendant was not his employer or anyone who had any connection with the work in progress. Defendant had leased his truck to Winona, which in turn supplied it to Lane, plaintiff's employer. So far as this record discloses, Lane gave all the orders to plaintiff in the performance of his work. Second, the doctrine applies classically to a case where construction work is of such a character that the employer literally has no other way to proceed (cf. Beyette v. Greenblatt, 284 App. Div. 826; Holgerson v. South 45th St. Garage, 16 A.D.2d 255, affd. 12 N.Y.2d 1011). But here plaintiff worked for two weeks, without attempting to have the truck repaired after knowledge of the danger, before the accident happened. Third, the doctrine still imposes a duty on the employee not to shut his eyes to an obvious risk (cf. McCarthy v. Emerson, 77 App. Div. 562, 565-566). In reaching the conclusion that plaintiff's conduct bars him from recovery, we have granted full credence to his testimony. In our view, his testimony establishes no basis for action against defendant and therefore the judgment should be reversed and the complaint dismissed. Christ, P.J., Hopkins and Brennan, JJ., concur; Benjamin, J., dissents and votes to affirm the judgment, with the following memorandum:
Plaintiff was looking for work as a truck driver. He went to Winona Trucking Construction Company and its representatives told him to go to Lane Construction Company for his work button. Lane told plaintiff that he was signing up for work but would have to get a truck from Winona. None was available and for two weeks plaintiff could not work. Winona finally assigned plaintiff to a truck and only at that time did he commence work. Immediately after discovering the defect in the truck, plaintiff reported it to Winona and defendant. Defendant said he could not immediately repair it. Winona said it could not repair the truck; that there were no other trucks available; and that plaintiff would have to do the best he could with a defective truck. If one is placed in the dilemma of abandoning the reasonable course of his business or subjecting himself to danger, he will not be charged with contributory negligence as a matter of law if he adopts the alternative measure ( Kaplan v. 48th Ave. Corp., 267 App. Div. 272; Guerra v. Ginevra, 27 A.D.2d 697). Plaintiff, a per diem worker, was faced with the problem of working with defective equipment or not working at all. In my opinion, he literally had no other way to proceed. Under the circumstances, I cannot, as a matter of law, find plaintiff guilty of contributory negligence. The fact that plaintiff failed to reveal the defect to his employer, Lane, is without consequence. The record reveals that it would have been a wasted effort. At the outset, Lane told plaintiff he would have to get his own truck from Winona before he could work. This is pointed up by the fact that plaintiff, a Brooklyn resident, went to Binghamton in search of a job as a truck driver; that he was hired by Lane; and that he was unable to work for two weeks because Winona could not supply him with a truck. Since Lane initially told plaintiff he would have to procure a truck through Winona; and since Lane could not help plaintiff during his two-week period of unemployment, there was no reason to believe that Lane could later help plaintiff and have him assigned to another truck, particularly when Winona said none was available. I conclude that, under the circumstances, plaintiff cannot be charged with contributory negligence as a matter of law. The question whether plaintiff acted with the care that a reasonably prudent man would have exercised under similar circumstances was for the jury to decide. They returned a plaintiff's verdict, which should not be disturbed. (Beldock, P.J., deceased.)