Opinion
June 19, 1944.
Action to recover damages for injuries sustained by plaintiff who, in the nighttime, walked across a lot adjoining to the north land leased by the defendant and thence on to defendant's land, where he fell into a grease pit. Judgment for plaintiff reversed on the law and the facts, without costs, and the complaint dismissed on the law, with costs. The findings of fact implicit in the verdict are reversed as against the weight of the evidence. The version of the plaintiff that he was traversing the lot for the purpose of obtaining a bulb at the gas station operated on defendant's land is contrary to the weight of the credible evidence, which establishes that he was effecting a short cut between Maple Avenue on the east and a diner to the west of the gasoline station on Main Street. The gasoline station was not open for business and had not been open for business after seven o'clock at night for months prior to the accident, which occurred at about nine o'clock at night. Plaintiff knew that the gas station was not lighted and that there were no lights on the lot to the north of the station on which he proceeded after parking his car some distance north of the gasoline station, Plaintiff, admittedly, had started from his residence immediately prior to the accident to meet his wife at a motion picture theatre on Main Street to the west of Maple Avenue. The testimony of a credible witness for defendant that plaintiff admitted to him that he was effecting a short cut at the time of the accident was not denied by plaintiff. In any event, plaintiff, in abandoning a safe route afforded by means of a paved sidewalk on Maple Avenue to the bluestone driveway of the gasoline station and thence to the only entrance to the building on that property, was guilty of contributory negligence as a matter of law. ( Fillis v. Wahlig, 267 App. Div. 781; Owen v. Westchester Country Club, Inc., 264 App. Div. 796, affd. 289 N.Y. 819; Fox v. Warner-Quinlan Asphalt Co., 204 N.Y. 240, 243.) Hagarty, Acting P.J., Johnston, Adel, Lewis and Aldrich, JJ., concur.