Before LUMBARD, Chief Judge, and WATERMAN and HAYS, Circuit Judges.
The plaintiff, Joseph C. Tropea, brought the present action against the defendants, Shell Oil Co. (Shell) and Maripet Supply Corp. (Maripet) for personal injuries allegedly caused by the negligence of one of Maripet's employees. Shell cross-claimed against Maripet for whatever amount the plaintiff might recover against Shell. After trial by jury in the Eastern District of New York, judgment was entered for the plaintiff upon a jury verdict against both defendants in the sum of $35,000 and judgment over was granted by the trial judge for the defendant Shell against the defendant Maripet. Shell and Maripet appealed from the respective judgments against them.
The plaintiff was the manager of a gasoline station at 11th Avenue and 43rd Street in Manhattan. The station had been leased to the plaintiff's employer, Aeroflex Corp., by the defendant Shell. Under its lease to Aeroflex Corp., Shell reserved the right "to inspect, repair and paint the equipment, and to enter the premises at any time for such purposes." Shell did not use its own employees or agents to do this work. Instead it engaged an independent contractor, Maripet, for this purpose. Whenever the station's equipment needed attention, the manager of the station would call Shell, and Shell in turn would give the order to Maripet to perform the requested work.
The physical arrangement of the drainage system connecting the wash bay with the grease pit at this gasoline station is of importance for an understanding of the events here at issue. The drain pipe from the wash bay leads straight down for about six feet. Then it makes a ninety degree angle and passes into a catch basin at a level three inches beneath the drain in the grease pit. The exit pipe from this catch basin is opposite the inlet pipe from the wash bay and, therefore, is also three inches below the grill of the drain in the grease pit. The bottom of the catch basin is about six inches beneath the grill. This construction allows about 192 cubic inches of fluid and sediment to remain in the catch basin at all times. The exit pipe leads to a catch basin at the far wall of the building and thence into the sewer system.
There is some dispute in the evidence as to the circumstances of the accident that gave rise to this lawsuit. The evidence most favorable to the plaintiff, which we must now accept, supports the following account of what happened. On November 5, 1958, the plaintiff informed Shell that one of the fuel pumps was in need of repair. Between 11:00 and 11:30 that morning an employee of Maripet, one Tonri, came to the plaintiff's station and fixed the pump. While Tonri was there, the plaintiff asked him to check the fuel storage tanks for water. Tonri complied and found water in the tanks. The plaintiff then asked Tonri if he would remove this water from the tanks. Tonri again consented, and, upon being asked if Tropea should call Maripet about this additional work, he replied that calling would be unnecessary. Tropea did not see any drum on Tonri's truck for carrying away the water to be removed from the fuel tanks.
The maintenance man commenced to pump the water from the tanks by means of a hand pump which he had brought with him. He discharged it into a five gallon can. Then he carried the can to the station's wash bay where he poured the liquid down the drain. After this he took the empty can back to the fuel tank for another load of water. He repeated this process about five times until all the water was removed from the fuel tank, the whole procedure taking about one hour. During this operation Tonri saw the plaintiff from time to time. At trial Tonri asserted that the plaintiff told him to dump the contents of the can down the wash bay drain, but the plaintiff testified that he gave no instruction whatsoever concerning the disposal of the water.
While Tonri was performing the above operation one of the plaintiff's employees, Torres, was working in the wash bay. After Tonri brought in the first load from the tank, Torres could smell gasoline present, and he said to Tonri:
"You'll have to excuse me, because this is not only water, this is also gasoline in there."
Tonri replied: "Well, what are you? A wise guy, trying to tell me what to do now?"
Torres: "No, I'm not trying to tell you what to do. But suppose somebody comes in here and drops a cigarette or match and the place goes on fire? I'll burn myself in here. And the coveralls will burn."
The maintenance man said: "Oh, I've been doing this for years. Never mind. Don't worry about it."
The owner of the gasoline station across the street was also present at the Aeroflex station that day. He observed the Maripet man, Tonri, pumping out the fuel tanks and smelled gasoline in the liquid being pumped.
After asking Tonri to pump the water from the storage tank, Tropea resumed his other duties as manager of the station. First he did some work in the parking lot. Next he took an automobile for a road test. Then he placed an automobile over the grease pit, which was adjoined to the wash bay where Tonri had been dumping the liquid from the fuel tanks but separated from that wash bay by a curtain. He then entered the grease pit beneath the car and proceeded to remove the cable from the car's starter bolt. No lubrication or oil changing had been done in the pit that day.
When the plaintiff pulled the cable from the starter bolt a spark was created. Suddenly, flames gushed up from the drain of the pit. The entire grease pit was enveloped in fire. Tropea, screaming, his clothes on fire, struggled out of the fiery pit. Torres, hearing Tropea's screams, rushed to his rescue, and by means of a fire extinguisher put out the flames on Tropea's clothing. Another employee immediately took Tropea to the hospital. Tonri, about to leave the premises, was putting his equipment onto his truck when the fire broke out. Tropea was severely burned.
About ten minutes after the accident an officer of Aeroflex Corporation, one Robinson, came to the station to inspect the damage. In the catch basin beneath the grease pit he discovered a mixture which he believed contained at least fifty per cent gasoline. Also, he noticed the odor of gasoline in the pit. The paint on the walls of the pit had been blistered by the intense heat of the fire. The under surface of the car which had been over the pit at the time of the fire, and which had been promptly pushed from the pit, was only slightly scorched.
Plaintiff's evidence tended to show, through the testimony of Robinson and another witness, one Acerno, that it was the custom in the trade to put liquid that had been pumped from fuel tanks into drums and to take these drums away from the premises by trucks. Defendants, through two other witnesses, denied that such a custom existed.
We shall first deal with the contentions of Maripet, supported by Shell, that a directed verdict or judgment n.o. v. should have been entered against the plaintiff, but, if not, a motion for a new trial should have been granted. They argue that the legally admissible evidence was insufficient to establish actionable negligence on the part of Maripet's employee, Tonri, and, furthermore, that the evidence was insufficient to establish the plaintiff's own freedom from his contributory negligence. Additionally, they maintain that the judge below committed reversible error in not giving the jury instructions that Maripet requested be charged, and in not granting a motion for a mistrial because of the plaintiff's attorney's references within the hearing of the jury to the plaintiff's dependent children. They also assert that the verdict was excessive and the judgment thereon should be set aside.
The following questions are raised by Maripet's claim that under the applicable New York State law of negligence plaintiff is not entitled to recover. First, did the admissible evidence establish that Maripet's employee failed to exercise due care? Second, did the admissible evidence establish that Tonri's conduct in washing the fluid down the drain was a cause in fact of the plaintiff's injury? Third, was the plaintiff within the class of persons to whom the law gives relief against the defendant for its negligence, and was the particular harm the plaintiff suffered an injury within the risk the defendant is required by law to avoid creating? Fourth, did the admissible evidence establish that the plaintiff was free from contributory negligence? An answer favorable to Maripet on any one of these questions would require a reversal.
Whether Tonri, Maripet's employee, was exercising due care, i.e., was acting as a reasonable man under the existing circumstances, was mainly a question for the jury, which found that he was not exercising due care. There was evidence to support this finding. Tonri was warned by Torres that it was improper to wash down the drain what was pumped from the tank, and there was testimony that it was a custom in the industry to carry off the waste water in trucks instead of washing it down the drain. It is well established that a general practice in a particular trade is relevant in order to prove that one following the practice exercised due care or that one not following it failed to exercise due care. Garthe v. Ruppert, 264 N.Y. 290, 190 N.E. 643 (1934); Shannahan v. Empire Engineering Corp., 204 N.Y. 543, 98 N.E. 9, 44 L.R.A., N.S., 1185 (1912).
Maripet contends, however, that the witnesses produced by the plaintiff to testify to the custom of the trade were incompetent to give testimony on this subject. The plaintiff's two witnesses, Acerno and Robinson, testified that the custom in the trade was not to wash the fluid pumped from the tanks down the drain but instead to carry the mixture away in a container. Acerno had operated service stations, selling various brands of gasoline, in a number of locations in the New York metropolitan area for approximately twenty years. He was accordingly familiar with the methods used by various firms for pumping out waste from fuel tanks. Therefore, he was competent to testify as to the custom of the trade. The other witness, Robinson, an official of Aeroflex Corporation, had had general supervisory authority over two Aeroflex service stations for six years. He had only seen water pumped from fuel tanks on three or four occasions, all of which were at stations operated by Aeroflex and serviced by Esso Standard Oil Company. The determination as to a witness's qualifications as an expert is a matter committed to the discretion of the trial judge, and his decision will only be upset on appeal for an abuse of that discretion. Olsen v. Realty Hotel Corp., 210 F.2d 785 (2 Cir. 1954). There was no abuse of discretion here. Even if Robinson lacked the personal experience necessary to qualify him as an expert on the custom of pumping out waste liquid from fuel tanks in the service station trade, his testimony was not so prejudicial to Maripet that its introduction requires a reversal, for it was only cumulative to that of Acerno, whose testimony was obviously competent. Moreover, the trial judge gave a clear and careful instruction to the jury that it was its duty to decide whether the custom to which these witnesses testified did in fact exist.
The cases relied upon by Maripet do not support its contention that the trial judge committed error in admitting the testimony of both of the plaintiff's expert witnesses. Olsen v. Realty Hotel Corp., supra, involved the exclusion below of expert testimony, and we held that the exclusion ruling was a proper exercise of discretion. Garthe v. Ruppert, 264 N.Y. 290, 190 N.E. 643 (1934), apparently did not involve the qualification of an expert witness. Chateaugay Ore & Iron Co. v. Blake, 144 U.S. 476, 12 S. Ct. 731, 36 L. Ed. 510 (1892) is far afield. It involved testimony concerning a certain local custom for the purpose of interpreting a written contract between the parties And in Dillon v. Socony Mobil Co., 9 A.D.2d 835, 192 N.Y.S.2d 818 (1959), the witness whose testimony was held to be incompetent lacked expertise in the particular industry involved in that case. Here it was not reversible error to admit the testimony of both of the plaintiff's witnesses as to the custom of the trade. The plaintiff's evidence tended to prove the existence of such a custom, and presented to the jury questions of fact for resolution whether, first, there was such a custom, and second, if there were, whether a failure to follow it demonstrated that there had been a failure by Maripet's employee to exercise due care.
Next, Maripet contends that Tonri's conduct in washing the mixture down the drain was not a cause in fact of Tropea's injury. Maripet asserts that the fire could have started from a break in the fuel line of the car under which the plaintiff was working. The defendant also suggests that the fire could have originated from the igniting of oil or grease on the plaintiff's clothes or in the pit. Part of the evidence at the trial supports Maripet's hypotheses. Tropea's hands suffered especially bad burns, and he testified that he did not smell gasoline fumes when he entered the pit. Moreover, the fire did not burn back to the wash bay drain from the catch basin beneath the grease pit drain.
On the other hand, the plaintiff's theory was that the fire was caused by gasoline fumes rising from the gasoline that Tonri had washed down the drain, and there was substantial evidence to support the theory. The plaintiff testified that the whole pit burst into flames that seemed to have come initially from the grease pit drain. Grease and oil are an unlikely source of such a fire. Moreover, there was testimony that grease and oil were never allowed to remain on the floor of the pit, and, furthermore, that no lubrication or oil changes had been performed in the pit that day. Robinson testified that when he inspected the pit shortly after the accident he smelled the odor of gasoline fumes, and he found a high percentage of gasoline in the sediment in the catch basin beneath the drain. Also, though the walls of the pit were severely scorched, the automobile over it was only slightly scorched, suggesting that the automobile was not the source of the gasoline that fed the fire. Finally, the fire was put out promptly with fire extinguishers, and there was a large accumulation of water in the sediment beneath the grease pit drain. Either of these circumstances could have prevented a fire that started in the grease pit from flaming back into the wash bay area.
Maripet cites several cases which support the following proposition found in Digelormo v. Weil, 260 N.Y. 192, 199-200, 183 N.E. 360, 362-363 (1932):
"The law is that where the evidence is capable of an interpretation which makes it equally consistent with the absence as with the presence of a wrongful act, that meaning must be ascribed which accords with its absence. In other words, it can only be established by proof of such circumstances as are irreconcilable with any other theory than that the act was done. Lopez v. Campbell, 163 N.Y. 340, 57 N.E. 501; Specht v. Waterbury Co., 208 N.Y. 374, 102 N.E. 569; Ruppert v. Brooklyn Heights R.R. Co., 154 N. Y. 90, 47 N.E. 971. The rule is well settled that where there are several possible causes of injury, for one or more of which defendant is not responsible, plaintiff cannot recover without proving the injury was sustained wholly or in part by a cause for which the defendant was responsible. Ruback v. McCleary, Wallin & Crouse, 220 N.Y. 188, 115 N.E. 449."
See Cole v. Swagler, 308 N.Y. 325, 125 N.E.2d 592 (1955); Kelly v. Otis Elevator Co., 283 App.Div. 363, 128 N.Y.S. 2d 39 (1954), aff'd 308 N.Y. 805, 125 N.E.2d 864 (1955). The plaintiff replies with cases supporting this somewhat contrary proposition found in Rosenberg v. Schwartz, 260 N.Y. 162, 166, 183 N.E. 282, 283 ...