Conway v. Naylor

Putnam, J.: The testimony upon the second trial, from the plaintiff himself, that his attention was so centered on his measuring.that he did not think of the revolving set-screw behind him, does [233] not change plaintiff’s rights. His learned counsel, in support of the doctrine of “ momentary forgetfulness,” cites Palmer v. Dearing (93 N. Y. 7, 11), where one was passing down a stairway in a tenement house, and Larsen v. Lackawanna Steel Co. (146 App. Div. 238, 240), a failure to guard set-screws. But the case at bar is not one for the doctrine that recognizes the tendency of continued routine to deaden by familiarity the effect of earlier warnings; such as dangers along one’s daily pathway (Thomp. Neg. [2d ed.] § 6266) or the liability to forego earlier precautions, after one has been long and continuously absorbed in new duties. Plaintiff had himself clamped on this collar and had noted its obvious peril. There was nothing which we can hold to be adequate to dim or obliterate his perception of what stood in plain sight. It was not during the monotony of the round of daily duty, but as a special approach for a brief and single purpose that he got up beside this revolving screw. It was not an act in panic- or compelled by a sudden emergency. There was, therefore, no legal ground to excuse or palliate his forgetfulness. While courts and juries have excused an inadvertent step in places which the person had known to be defective, such prior knowledge was slight, or remote in time, and faded from the mind, or there was an allowable presumption that the danger had been removed, of which there had been some promise. As was said by Thomas, J.: “No one would ever be negligent if it were sufficient to forget.” (Brown v. Associated Operating Co., 165 App. Div. 702, 704.) The judgment and order must, therefore, be reversed, with costs; and, as the facts at the trial established contributory negligence warranting a nonsuit, the complaint should be dismissed, under Code of Civil Procedure (§ 1317), with costs. Present—Carr, Stapleton, Mills, Rich and Putnam, JJ. Judgment and order unanimously reversed, with costs, and complaint unanimously dismissed, with costs.