Conrad v. Card , 52 A.D.2d 685 ( 1976 )

Appeal from a judgment of the Supreme Court, entered December 14, 1973 in Broome County, upon a verdict of no cause of action rendered at a Trial Term. On April 18, 1971 William Conrad, a visitor on the property of David Card, sustained serious burn injuries when, as Card poured gasoline into the carburetor of a pick-up truck owned by Ivan Ploutz while Ploutz attempted to start the motor with the ignition switch, a backfire occurred through the carburetor igniting the jar of gasoline held by Card. The jury returned a verdict of no cause of action based on a finding of assumption of the risk. We cannot say on the instant record that the jury’s verdict was against the weight of the evidence and contrary to law as the plaintiffs urge. There is present here only a factual question as to whether Conrad voluntarily subjected himself to a peril known to him, or generally observable by a person of ordinary prudence in his situation (see Eufemia v Pacifico, 24 AD2d 673; Utica Mut. Ins. Co. v Amsterdam Color Works, 284 App Div 376, 379). Moreover, this question was specifically submitted to the jury on a" charge following New York Pattern Jury Instruction without exceptions (PJI 2:55; CPLR 4110-b, 5501, subd [a], par 3). Nor does the failure of the trial court to review the evidence or attempt to relate the evidence to the issues presented require reversal in this relatively straightforward case, especially, since no objection was taken to the charge in that regard (Tenczar v Milligan, 47 AD2d 773; Zipay v Benson, 47 AD2d 233). We find present no other basis for reversible error, and, accordingly, the judgment appealed from must be affirmed. Judgment affirmed, without costs. Greenblott, J. P., Main and Reynolds, JJ., concur; Mahoney and Herlihy, JJ., dissent and vote to reverse in the following memorandum by Mahoney, J.