Halstead v. Kennedy Valve Mfg. Co.

Decision Date20 May 1971
Citation36 A.D.2d 1005,321 N.Y.S.2d 215
PartiesArnold H. HALSTEAD, Respondent, v. KENNEDY VALVE MANUFACTURING CO., Appellant.
CourtNew York Supreme Court — Appellate Division

Ziff, Weiermiller & Learned, Elmira (Philip C. Learned, Elmira, of counsel) for respondent.

Personius, Cramer, Mustico & Sullivan, Elmira (Ralph S. Cramer, Elmira, of counsel) for appellant.

Before HERLIHY, P.J., and REYNOLDS, STALEY, SWEENEY and SIMONS, JJ.

MEMORANDUM DECISION.

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 midnight 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 ten to twelve feet long by six feet wide and eight 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...

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8 cases
  • O'Connor v. G & R Packing Co.
    • United States
    • New York Supreme Court — Appellate Division
    • April 7, 1980
    ...v. Conigliaro, 35 A.D.2d 524, 313 N.Y.S.2d 189, affd. 29 N.Y.2d 930, 329 N.Y.S.2d 321, 280 N.E.2d 95; Halstead v. Kennedy Valve Mfg. Co., 36 A.D.2d 1005, 321 N.Y.S.2d 215, affd. 31 N.Y.2d 901, 340 N.Y.S.2d 638, 292 N.E.2d 782; Winnick v. New York State Elec. & Gas Corp., 38 A.D.2d 623, 326 ......
  • Fitzsimmons v. State at Stonybrook
    • United States
    • New York Supreme Court — Appellate Division
    • June 25, 1973
    ...Housing Auth., 8 A.D.2d 839, 190 N.Y.S.2d 198, affd. 7 N.Y.2d 944, 198 N.Y.S.2d 315, 165 N.E.2d 878; see also Halstead v. Kennedy Valve Mfg. Co., 36 A.D.2d 1005, 321 N.Y.S.2d 215, affd. 31 N.Y.2d 901, 340 N.Y.S.2d 638; 1 Shearman & Redified on Negligence, § 131, p. 321) or he should have se......
  • Lowe v. State
    • United States
    • New York Supreme Court — Appellate Division
    • June 10, 1993
    ...A.D.2d 949, 949-950, 509 N.Y.S.2d 152) or to have ignored a danger which he should have foreseen (compare, Halstead v. Kennedy Valve Mfg. Co., 36 A.D.2d 1005, 1007, 321 N.Y.S.2d 215, aff'd, 31 N.Y.2d 901, 340 N.Y.S.2d 638, 292 N.E.2d 782). Moreover, considering the penalties which may be im......
  • Martinez v. State
    • United States
    • New York Supreme Court — Appellate Division
    • March 7, 1996
    ...here claimant clearly ignored a danger which he, with his asserted experience, should have foreseen (see, Halstead v. Kennedy Valve Mfg. Co., 36 A.D.2d 1005, 1007, 321 N.Y.S.2d 215, affd. 31 N.Y.2d 901, 340 N.Y.S.2d 638, 292 N.E.2d ORDERED that the judgment is affirmed, without costs. MIKOL......
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