The legal question presented is whether the plaintiff acted with the care that a reasonably prudent man would have used under the circumstances. Ordinarily this presents a question of fact for the jury. Where there is no dispute upon the facts and only one conclusion can be drawn therefrom, then the court may decide it as a question of law (Nelson v. Nygren, 259 N. Y. 71, 76).
The testimony here reveals that plaintiff, Arrigo, stopped his car in the southbound lane of Military Road nearest the double yellow center line and started back toward the Conway car. Conway testified that plaintiff opened his door about 80 degrees causing it to extend over the double yellow line. Plaintiff himself conceded that the left side of the Conway vehicle was no less than 8 inches and no more than 12 inches from the nearest edge of the double line. Thus, it would seem clear that the opened door was over the double yellow line. It was while the plaintiff was so positioned that defendant Van Schoonhoven’s vehicle traveling in a northerly direction struck the Conway door which, in turn, struck plaintiff in the back.
Plaintiff’s explanation for his presence as he testified in direct examination was that the Conway “ automobile ran into the rear end of mine * * * I put the car in park. I left my car, closed the door, proceeded back to the car that was in the rear of mine.” “ Q. All right. Now, what was the purpose of your getting out of your car? A. Mainly I wanted to see if the gentleman was all right. Under the circumstances I didn’t know whether he would be ill or whatever the case may be. ’ ’ Plaintiff had previously testified that the Conway car had been weaving on the highway before he passed it.
Granting that plaintiff thought something was wrong with the driver of the car behind him, such does not exculpate him from the consequences of his own actions. The plaintiff had also testified that it was dark out and that he knew this was a heavily traveled thoroughfare but that he had not looked to see if there was any traffic facing north before he walked back to the car behind him.
Thus, it appears beyond dispute on the record that plaintiff placed himself in the presence of a known danger from oncoming traffic. He was required to exercise that degree of care and caution for his own safety commensurate with the danger reasonably to be apprehended. The proof is devoid of any evidence of plaintiff’s taking precaution or due care for his own safety that would exonerate him of the charge of contributory negligence. Where the plaintiff’s testimony to exculpate himself is insufficient, as it is here, it is, in the eye of the law, no evidence (Blum v. Fresh *218Grown Preserve Corp., 292 N. Y. 241, 245). Thus the only conclusion that can be drawn from the evidence in the record is that plaintiff’s actions were so reckless of his own safety as to constitute negligence as a matter of law (Morales v. Rothke, 22 A D 2d 870, affd. 18 N Y 2d 913; Casey v. Ross, 10 N Y 2d 834; Rossman v. La Grega, 32 A D 2d 675).
There being no question to submit to a jury, the judgment below should be affirmed.