428 F2d 446 Martie v. V Cogan

428 F.2d 446

Jesse B. MARTIE, Appellee,
Thomas V. COGAN, Jr., Appellant.

No. 14139.

United States Court of Appeals, Fourth Circuit.

June 18, 1970.

John A. K. Donovan, Falls Church, Va., for appellant.

Henry B. Zachary, Alexandria, Va., for appellee.

Before HAYNSWORTH, Chief Judge, and BRYAN and CRAVEN, Circuit Judges.


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Defendant appeals from a judgment awarding $12,500 in damages to plaintiff for injuries caused by an explosion as the parties were attempting to start the defendant's car by pouring gasoline into the carburetor. Upon a review of the briefs and record, we find oral argument unnecessary and affirm. Plaintiff and defendant both of whom are automobile mechanics, acknowledge that priming the carburetor with gasoline is an accepted way of starting a stalled car, and the record is replete with evidence that the only danger involved is the possibility of an explosion if the ignition is turned on. Plaintiff testified that he was under the hood pouring gasoline when he saw the car's accelerator linkage moving forward, followed immediately by the explosion. Defendant admitted turning the ignition key and depressing the gas pedal just before he observed plaintiff coming out from under the hood engulfed in flames.


Defendant argues that there was no evidence of negligence on his part, that plaintiff was contributorily negligent as a matter of law, and that the plaintiff assumed the risk of an explosion. We think the evidence in this case fully justifies the District Judge's findings that defendant was negligent and that plaintiff was not. Plaintiff did not assume the risk of an explosion caused by defendant's negligent conduct in turning the ignition key before plaintiff could retire to a position of safety.