Opinion
November 17, 1970
Judgment, Supreme Court, New York County, entered on March 9, 1970, dismissing the complaint on defendant-respondent's motion to set aside a jury's verdict after trial in favor of plaintiff-appellant, affirmed. Respondent shall recover of appellant $50 costs and disbursements of this appeal. As the trial court properly held, "in view of the facts and in view of the testimony of the plaintiff himself as to the circumstances of this accident * * * [it cannot be seen] * * * how the conclusion can be avoided that this plaintiff was inattentive and oblivious to what necessarily was occurring before him." Plaintiff had brought his auto to defendant's station, where it was mounted upon a hydraulic lift so that new shock absorbers, obtained by plaintiff elsewhere, might be installed. The mechanic then observed that the shock absorbers were of the wrong type and it was arranged that plaintiff would go in his own car to exchange them. The mechanic commenced to lower the hoist for this purpose, with the usual hissing sound, but plaintiff, though familiar with garage operations, remained with part of his foot in the area where the vehicle descended. He was apparently bemused by his inspection of the inscription on the box handed to him and abstracted sensorily from awareness of the situation in which he had placed himself, completely ignoring his own obligation of reasonable self-care. At the very least, these "circumstances point as much to the negligence of the plaintiff as to its absence" ( Tornambe v. Tornambe, 16 A.D.2d 680, affd. 12 N.Y.2d 1003), and vacatur of the jury's verdict was obviously called for. Tornambe has been cited solely for the proposition of law embraced in the foregoing quotation and certainly not for the purpose of comparing or equating the fact pattern there with that found here. No analogy was either intended or attempted. It is axiomatic that every judicial holding that a particular fact pattern reflects a legal conclusion of negligence or contributory negligence must be confined to that pattern, and to attempt to do otherwise here is futile and pointless. This case stands, in our view, solely upon its own unique set of facts — unique because it is inconceivable that any reasonable adult person would remain in the posture in which plaintiff placed himself — and we hold that these circumstances point inexorably to a conclusion of law that plaintiff was contributorily negligent.
Concur — Stevens, P.J., Markewich and Steuer, JJ.; McGivern, J., dissents in the following memorandum:
I do not find contributory negligence as a matter of law. The operator of the lift, who spoke little English, lowered it without a forewarning to the plaintiff, to whom he had handed the absorbers, and of whose physical presence on the scene he was aware. The operator and the plaintiff were on opposite sides of the car. To me, this represents a classic, if not simplistic jury question of fact. And the question was presented to the jury in a charge to which no exception was taken. The factual situation is not without close or analogous precedent. (Cf. Raplee v. Flintkote Co., 227 N.Y.S.2d 1012; Nicholson v. Greeley Sq. Hotel Co., 227 N.Y. 345.) The jury having resolved this question of contributory negligence in plaintiff's favor, and no motion having been made in respect of excessiveness, I would reverse the action of the Trial Justice. Moreover, the applicability of Torambe v. Torambe ( 12 N.Y.2d 1003) cited by the majority, completely eludes me. That case concerned a mother-in-law, a social guest, who sued her son and daughter-in-law, because at night she tripped over a cord attached to an electric iron. But in the Torambe case, the plaintiff did not testify, it being represented that she was both senile and hard of hearing. There is a closely analogous case, however, involving the fall of a heavy iron grating. (See Galvin v. Mayor, 112 N.Y. 223.) In that case, as here, the trial court nonsuited the plaintiff, finding as a matter of law the plaintiff was guilty of contributory negligence; and the appellate court (p. 226) reversed, saying: "It is not obvious why the driver should necessarily be in a position to receive injury; but this was a question to be determined as one of fact by the jury." The Galvin case (pp. 229-230) also cited with favor Rehberg v. Mayor ( 91 N.Y. 137) to the effect that cases of nonsuit require "upon appeal all contested facts shall be deemed established in favor of the plaintiff, and the most favorable inferences to be drawn from the evidence must be assumed in his favor." Thus, I would reinstate the jury's verdict.