Betzag v. Gulf Oil Corp., 298 N.Y. 358

Lewis, J.

The appellant’s intestate, a driver of an oil tank trailer truck, instituted this action during his lifetime to recоver for personal injuries sustained by him when, during a tank-filling operation upon premises maintained by the dеfendant corporation, he fell to the ground from a catwalk on the oil truck he was operating.

At Trial Term a jury awarded a verdict to the plaintiff, whose death occurred eleven weеks after the trial. Although since the death of the plaintiff his widow has prosecuted the action as administratrix of his estate, it will be convenient to refer to the decedent as the plaintiff. At the Appеllate Division the judgment entered at Trial Term was reversed on the law and the facts and the complaint was dismissed on the law. The opinion Per Curiam by the Appellate Division states the basis of its decision as fоllows: “ In our opinion there was no proof adduced which would serve to show a causal cоnnection between the breaking of the rope and the fall of plaintiff’s intestate, particularly in the light of the undisputed fact that the rope was not provided as a means of support and thаt, at the time it broke, the plaintiff’s intestate was located squarely in the middle of the catwalk, kneeling on one knee and holding onto the hatch opening with his left hand while operating the valve by means of the rope with his right hand. We are also of opinion that the verdict was excessive, in the light of the fact that the proof shows that plaintiff’s intestate was suffering from nephritis and arteriosclerosis. The complaint should be dismissed, however, for the reason that the accident was not one within reаsonable range of anticipation, in any event a new trial would he granted because ‍​‌‌​‌​‌​‌‌​‌​​​​‌​​​​​‌‌​​​‌‌​‌​​‌‌‌‌​​‌​‌​‌​​​‌‍of the excessiveness of the verdict.” (272 App. Div. 935-936.)

In those circumstances — the reversal was upon the law we are bound by the facts which the jury might have found.” (Hendrickson v. Hodkin, 276 N. Y. 252, 257.) Accordingly, the scope of our problem is narrowed to the inquiry: Is there evidence — direct or circumstantial — from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred? (Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1, Cornbrooks v. Terminal Barber Shops, Inc., 282 N. Y. 217, 223; Dillon v. Rockaway Beach Hosp., 284 N. Y. 176, 179; Osipoff v. City of New York, 286 N. Y. 422, 425; Rosenberg v. Schwartz, 260 N. Y. 162, 166; Faber v. City of New York, 213 N. Y. 411, 414.) If there is such evidence the question was presented for determination by a jury — under proper instructions — whethеr plaintiff’s injuries were caused by actionable fault of the defendant.

had been observed by onе of the defendant’s patrons, other than the ‍​‌‌​‌​‌​‌‌​‌​​​​‌​​​​​‌‌​​​‌‌​‌​​‌‌‌‌​​‌​‌​‌​​​‌‍plaintiff, more than a week prior to the plaintiff’s accident.

When the tank was nearly full the plaintiff released his hold on the valve cord to stop the flow of oil. After ascertaining by examination that the tank would hold 200 gallons more, he again wound the cord around his gloved hand and pulled the valve cord to release the flow. As he did so the cord brоke and he fell from his kneeling position on the catwalk to the concrete surface belоw. A witness who was filling a tank truck at an adjoining platform, and who had noticed the plaintiff ‘ ‘ squatting ’ ’ on the catwalk and “ pulling the rope ”, saw the plaintiff fall from the catwalk and upon going to his aid found his body on thе paved surface of the plant floor with a piece of the broken valve cord in his hand “ tied up around his fist, his hand ⅜ # ⅝ it was wound around the glove.” That witness described the condition of the valve cord as follows:

“ Q. Now, describe the condition of that rope as you saw it there that day. A. Well, the ropе had a knot at the end of the rope and then about, I should say, about six to ten inches another knоt, then further up where the rope was broken there was another knot, that the rope was brokеn before that, and it was tied together. * # *

“ Q. Tell me with reference to the break that you say was therе, other than the break at the time of Betzag’s accident, was it above ‍​‌‌​‌​‌​‌‌​‌​​​​‌​​​​​‌‌​​​‌‌​‌​​‌‌‌‌​​‌​‌​‌​​​‌‍the piece that you picked off the ground or was it below the end of the piece you picked off of the ground? A. The break was below.

“ Q. How far below? A. Oh, I would say about eight or nine inches.

“ Q. As you looked at the ropе can you tell us ¶⅛⅛ the id tion of it was? A. Yes:

“ Q. Well, what was it? A. The rope had all files on it. hi other words, a lot nf the strands had been 'broken.

of causation or of negligence even though ‍​‌‌​‌​‌​‌‌​‌​​​​‌​​​​​‌‌​​​‌‌​‌​​‌‌‌‌​​‌​‌​‌​​​‌‍it does not negative the existencе of remote possibilities that the injury was not caused by the defendant or that the defendant was not negligent.” Here — where the complaint has been dismissed on the law, as in the Dillon case 179) —we think it enough that plaintiff upоn the trial came forward with evidence of facts and conditions from which the defendant’s negligence and “ the causation of the accident by that negligence may be reasonably inferred.”

In the circumstances disclosed by this record we cannot say as a matter of law, as did the Appellate Division, that the accident which befell the plaintiff was not one within the reasonable rangе of anticipation.

The judgment should be reversed, with costs, and the case remitted to the Appellate ‍​‌‌​‌​‌​‌‌​‌​​​​‌​​​​​‌‌​​​‌‌​‌​​‌‌‌‌​​‌​‌​‌​​​‌‍Division for further proceedings not inconsistent with this opinion..

LoughbaN, Ch. J., CoNway, DesmoNd, Dye and Fuld, JJ., concur.

Judgment reversed, etc. [See 298 N. Y. 916.]

Case Details

Case Name: Betzag v. Gulf Oil Corp.

Court Name: New York Court of Appeals

Date Published: Jan 13, 1949

Citations: 298 N.Y. 358; 83 N.E.2d 833

Court Abbreviation: N.Y.