(dissenting). I dissent because, under the evidence, the findings of negligence and freedom from contributory negligence are necessarily inconsistent.
The particular negligence alleged, proved and submitted to the jury is that defendant’s daughter pumped gasoline into the car tank with knowledge that a lighted lantern was “ contiguous to the point where this opening into the tank was — within a short distance of that.” But the same knowledge that defendant’s daughter had, or ought to have had, this plaintiff had. Defendant’s daughter stood at the gasoline pump some little ’distance away from the car with her view of the exact location of the lantern obstructed by the man on the running board who held the hose. Plaintiff was on the back seat within three or four feet of the lantern, her view unobstructed.
It is to be noted that the wrong charged "s not the doing of an act in a negligent manner. If it were, plaintiff’s inaction might not be negligence. One is not ordinarily bound to anticipate negligent performance. Nor would failure to act promptly and effectively in an emergency created by an unforeseen negligent per*177formance be a bar. Here, however, the wrong relied on is the lack of foresight or pre-caution which an ordinarily prudent man would have had under the circumstances. But the plaintiff, who had the same knowledge, was charged with the same foresight. If an ordinarily prudent man at the pump should have foreseen the danger and held his hand, it is not easy to see why such a man on the back seat, having the same knowledge, should not likewise have foreseen the danger and avoided it. “ If the defendant’s only fault is an absence of pre-caution, a like default on the plaintiff’s part will debar the latter.” (Bohlen, Studies in the Law of Torts, 531. See, also, to the same effect, 20 R. C. L. 107, § 93.)
The rule is illustrated by the decision of this court in Dennis v. Harris (19 N. Y. Supp. 524; 64 Hun, 637). Defendants, using a steam engine, were pressing hay near'plaintiff’s barn. Plaintiff was assisting in the work. The barn was set on fire by sparks from the engine which blew into an open door. The opinion says: “It is contended by the plaintiff that the defendants were guilty of negligence in placing the engine so near the opening into the barn mentioned, with the wind blowing as it did at the time. The evidence tended to show that all the surrounding facts affecting the question of negligence as to the location of the engine, the condition of the wind, and the open doorway, were at least as fully known to the plaintiff as to the defendants. The plaintiff was present, and knew all about the situation, and, if there was any negligence arising from these circumstances, the plaintiff’s negligence contributed to his loss.”
An analogous situation existed in Joyce v. Brockett (205 App. Div. 770; affd., 237 N. Y. 561), where plaintiff was injured while riding as a passenger in defendant’s automobile. The court says: “ If it was negligent for the defendant to drive at the rate of speed at which he was going, it was equally negligent for the plaintiff, who -was familiar with the road and its dangers and was in every respect as able to judge what was a dangerous speed as was the defendant, to sit without protest and thrust all responsibility upon the driver; and to allow a jury to speculate whether, upon such facts, the defendant was negligent, while'the plaintiff was not, is to permit them to find a verdict solely upon conjecture.” (See, also, McGuire v. New York Railways Co., 230 N. Y. 23, 27.)
The judgment should be reversed and a new trial granted.
Clark, J., concurs.
Judgment and order affirmed, with costs.