Opinion
May 20, 1971
Appeal from a judgment of the Supreme Court, Chemung County, entered upon a jury verdict in favor of the respondent. On March 8, 1965 respondent, a security guard in employ of Burns Detective Agency assigned to the 4:00 P.M. to 12:00 P.M. shift at the appellant's plant, was making his usual rounds, when, at about 10:00 P.M., he noted a light flare on and off in what he thought was the northern area of the plant yard. He started out to investigate and proceeding in the dark, without a flashlight, fell into a narrow opening surrounding an oil tank on the premises and suffered injuries. This fuel oil tank which had been there for many years without mishap was situated in an excavation which was 10 to 12 feet long by 6 feet wide and 8 feet deep. There was a space of 12 to 18 inches between the walls of the excavation and the oil tank. There was a concrete framing curb about a foot wide and a foot high completely surrounding the excavation. In order to fall into the narrow space between the tank and the side of the excavation, one would have to traverse or pass over the foot high concrete framing or curbing around the excavation. Respondent testified that prior to the evening of March 8, he had never had any occasion at night or otherwise to be in the vicinity of the tank, but that he was aware the tank was out there as he had casually seen it, and that he assumed the tank was set in a pit. He further testified that as he was walking towards the light he had seen to investigate, that he was able to make out in the darkness the partial outline of the tank from about five or six feet away and that a truck was in his way. Respondent stated he chose to attempt to circumvent the truck on the right because the truck was very close to a level railroad spur on the left side and he would have had to cross the railroad spur had he chosen to go the other way (it is interesting to note that on his regular rounds he crossed this same spur). The route traveled by respondent in the dark was a deviation from his normal route on his rounds, was not a defined road, path or driveway but was just bare land, and respondent in so traversing this dirt surface could not see a step ahead of him on the ground in the area in which he was proceeding. The respondent allegedly did not see the hole prior to falling into it. The evidence does not show whether the plaintiff fell over the concrete framing wall or stepped over it, but he had to traverse it to fall into the narrow opening between the tank and the framing wall. The truck in question was parked in its usual, normal place and respondent testified that he had seen it parked there many, many times. The truck had no more relevancy to the case than if it had been a pile of castings or valves. The lighting conditions which respondent encountered are revealed by his testimony: "Q. Now did you see the pit or the tank, before you went into it? A. I never saw the pit, sir. I could see the tank, and an outline of the tank, sort of an outline. Q. And you saw it, before you went into the pit? A. Yes, sir. Q. And how far away from you was the tank, when you saw it on that evening? A. I couldn't say, sir, exactly. Q. Give us your best estimate. A. It was a few feet. I couldn't say, five, six feet, maybe; I wouldn't know for sure. Q. That you saw the tank? A. Yes, sir. Q. And you continued on walking? A. Yes, sir. Q. And it was dark? A. Yes, sir. Q. So that the area that you were walking into and toward the tank was in darkness; was it not? A. Yes, sir. Q. And could you see where you were going? A. I don't know what you mean. Q. Could you see step by step ahead of you the area into which you were proceeding? A. No sir; I couldn't see on the ground." Appellant introduced into evidence the fact that the regulations governing Burn's Detectives states under the topic "Safety Precautions for Guards", that: "Plant Patrol on foot makes the guard subject to all pedestrian hazards. Since Patrols are most frequently conducted at night in dimly lighted areas, the requirement to observe common-sense safety measures is obvious. * * * A. On night shifts use flashlights if lighting conditions are not adequate on patrol." One of respondent's own witnesses, another guard, testified that in the area involved there was no lighting system and that it was dark and further that on night patrol the guards are required to carry a flashlight. Also introduced into evidence was the fact the regulations governing the guards mandated them to report any dangerous condition they may have encountered on their patrols, and that neither the respondent nor any other guards at the plant reported this oil tank area as a dangerous area. The evidence of negligence upon the part of appellant in this case is far from convincing. This is a plant which manufactures valves, and is for the most part a foundry. The rather substantial area is enclosed by a fence and outside of the buildings is a large storage area, for piles of finished products among other things. The oil tank is located in an area not usually frequented by employees or others. To contend that this tank which is completely surrounded by a concrete wall 12 inches by 12 inches leaving an area of 12 to 18 inches between the wall and the tank, constitutes a dangerous or hazardous condition and is a violation of the duty of reasonable care owed by the appellant is difficult to accept and approve. But this feature of the case need not detain us, because on his own testimony respondent proceeded in the darkness without proper regard for his own safety and was guilty of contributory negligence as a matter of law. The decisional law is well settled and firmly established that when a lack of lighting renders ineffective the use of one's eyesight as to the condition of the route upon which he is traversing, ordinary prudence requires that he refrain from proceeding further without first ascertaining if he may safely proceed ( Dunn v. White Plains Housing Auth., 7 N.Y.2d 944; Hruska v. Stewart Co., 297 N.Y. 829; Hudson v. Church of Holy Trinity, 250 N.Y. 513; Bragg v. Smilowitz, 16 A.D.2d 181, affd. 12 N.Y.2d 769; Reinholtz v. Singer, 16 A.D.2d 678; Alexander v. Cavagnaro, 4 A.D.2d 689, affd. 4 N.Y.2d 989; Midgett v. Mastropoalo, 277 App. Div. 792, app. dsmd. 302 N.Y. 687). The respondent has cited no pertinent cases to the contrary. Here the respondent elected to proceed in total darkness into an area with which he was only vaguely familiar and which he should have known was fraught with possible danger. ( Greelish v. New York Cent. R.R. Co., 29 A.D.2d 159, affd. 23 N.Y.2d 903.) Accordingly, the judgment should be reversed and the complaint dismissed. Judgment reversed, on the law and the facts, and the complaint dismissed, with costs. Herlihy, P.J., Reynolds, Staley, Jr., Sweeney and Simons, JJ., concur.
These rounds went from clock one to clock 16 — at each clock or station a key was pushed to record the time the guard was at the clock or station. It is a route which is followed by the so-called guards and has been referred to in the record as a round or rounds. The duties of these men, who as stated were employees of the Burns Detective Agency, an independent contractor, was plant security, fire protection and safety.