Jack Durant v. Trans World Airlines

The trial court erred in dismissing the complaint at the end of plaintiff's case on its ruling that plaintiff's attempt to
find his way into the East Side Airlines Terminal Building during the massive power failure on November 9, 1965, constituted
contributory negligence as a matter of law. The record establishes that plaintiff was transported from Newark Airport to the
East Side Terminal by defendant Carey. The street lights were out; there was a total blackout. In disregard of instructions
from his employer, the bus driver discharged his passengers outside of the Terminal on 38th Street instead of inside the Terminal
on First Avenue, where makeshift illumination has been provided for that entrance. On this record the jury should have been
given the fact question raised by the conduct of the Carey driver in disregarding instructions and discharging plaintiff into
the darkened street. Had he followed instructions and discharged his passengers at the lighted First Avenue entrance, this
accident may have been avoided. The jury could have found this conduct to have been negligent. (Young v. Jamaica Buses, 262
App. Div. 860; Forgion v. Travelers Ins. Co., 260 App. Div. 1031; Frazier v. Westchester St. Transp. Co., 272 App. Div. 819;
affd. 297 N. Y. 620; Lewis v. Brooklyn Bus Corp., 252 App. Div. 875; Speck v. International Ry. Co., 133 App. Div. 802.) Likewise,
plaintiff's conduct under the circumstances was for the jury to pass on. His knowledge that his attempt to find his way in
the darkness necessarily involved danger, does not constitute contributory negligence as a matter of law. (See McRickard v.
Flint, 114 N. Y. 222, 230; Crimi v. Macy & Co., 268 App. Div. 1043, affd. 294 N. Y. 753.) Plaintiff is entitled to have
the jury determine whether his conduct was that of a reasonably prudent person in the circumstances prevailing. (See Verduce
v. Board of Higher Educ., 9 A.D.2d 214, revd. 8 N.Y.2d 928.)