Gugliemini v. Conigliaro

• Decision Date: 02 July 1970
• Parties: John GUGLIEMINI, Respondent, v. John CONIGLIARO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 189

313 N.Y.S.2d 189

35 A.D.2d 524

John GUGLIEMINI, Respondent, v. John CONIGLIARO, Appellant.

Supreme Court, Appellate Division, Second Department.

July 2, 1970.

John Fallenberg, New York City, for plaintiff-respondent; Herman B. Gerringer, New York City, of counsel.

Gottesman, Wolgel & Smith, New York City, for defendant-appellant; Harold H. Wolgel, Max Selit, New York City, of counsel.

Before CHRIST, P.J., and HOPKINS, BRENNAN and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

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, 131 N.Y.S.2d 782, 785, affd. 308 N.Y. 816, 125 N.E.2d 871; cf. Seidman v. M & R Air Conditioning Corporation, 15 N.Y.2d 814, 257 N.Y.S.2d 935, 205 N.E.2d 859). 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, 141 N.Y.S.2d 529, affd. 1 N.Y.2d 691, 150 N.Y.S.2d 798, 134 N.E.2d 67; Brady v. Gardner, 20 A.D.2d 858, 248 N.Y.S.2d 164).

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, 45 N.Y.S.2d 510). 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, 132 N.Y.S.2d 110; Holgerson v. South 45th St. Garage, 16 A.D.2d 255, 227 N.Y.S.2d 195, a...