— Judgment, Supreme Court, New York County (Conway, J.), entered December 4, 1980, upon a jury verdict in defendant’s favor, reversed, on the law and facts, and vacated and a new trial is directed, with costs to abide the event. On June 18,1978, plaintiff was injured when she fell while crossing, with the light, the Riverside Drive service road at the corner of West 97th Street in Manhattan.
Plaintiff explained the happening of the occurrence as follows — her foot caught in a pothole (5 inches by 5 inches and 2 inches deep) causing her to fall.
She testified that although she had observed the hole in the past, she “was looking for traffic at that point, that’s why I didn’t see the hole * * * The reason I didn’t see the hole, though I have known for years it was there is that this is a place where cars going south on Riverside Drive make a sudden U-turn and go north on the service road * * * so I have to be watching for cars making a sudden swoop around.” The trial court in its charge did not relate the contentions of the plaintiff to the law, but merely instructed the jury generally as to negligence, the duties of the defendant in maintaining its streets, and actual or constructive notice.
Plaintiff did not except to the charge nor did she request a charge on “momentary forgetfulness” with respect to her prior knowledge of the pothole. However, during the course of its deliberation, the jury requested a definition of negligence and the ensuing colloquy between the jury and the trial court discloses a de facto concern with this issue.
In relevant part the colloquy is as follows: The court: “[Njegligence is the doing of an act * * * which an ordinary prudent person would not do or the failure to do an act which an ordinary prudent person would”. Juror No. 3: “Does the matter of whether it is a subconscious or conscious act have any bearing in this * * * At this point is it possible to be negligent subconsciously, consciously”.
The court: “Wait.” Juror No. 3: “Subconsciously, in other words someone is not aware of what they are doing, can it still be under the umbrella of negligence”.
Juror No. 2: “He means that if you do something that you should have known or would have led to a definite result, and yet for some reason you didn’t pay attention to what you were doing subconsciously you were thinking about something else is that negligence or is it not negligence.” The trial court, not perceiving the thrust of the jury’s inquiry on the issue of forgetting known danger, gave two inapt examples of negligence and compounded this error by instructing the jury that they were “[a]ll * * * prudent people” thus directing that they apply their own standard of care in conflict with the required standard of what a reasonably prudent person would do. “The failure to have in mind the existence of a dangerous condition at the time one encounters it, even though there had been knowledge of the condition in the past, presents a question of fact.
It is for the jury to say whether the failure to have the danger 567 in mind was the result of such poor memory or such inattentiveness on the part of the injured person as to charge her with falling below the standard of a reasonably prudent person. (Rugg v. State of New York, 284 App. Div. 179,183 * * *)” (Washington v Longview Terrace Apts., 37 AD2d 809, 809-810).
It has been aptly observed “That forgetfulness is not necessarily * * * negligence but is merely one factor to be considered in the light of the total situation, in determining whether the overall test of reasonable care has been met. The claimant is not necessarily to be charged with * * * negligence because he once knew of the danger and suffered a momentary lapse at the time when he needed the knowledge.
The failure to have in mind the existence of a dangerous condition at the time one encounters it, even though there had been knowledge of the condition in the past, does not constitute * * * negligence as a matter of law. It presents, at most, a question of fact to be determined by the trier of the facts” (41 NY Jur, Negligence, § 59).
The first of the inapt examples given or endorsed by the trial court in response to the jury’s inquiry was that of driving through a stop sign: The court: “If I am driving an automobile I drive down the street. It says stop. I am daydreaming. I am driving right through. I drive into somebody.
Unconsciously I have driven through it, but certainly it is an act of negligence.” This example is imbued with two defects respecting the evidence at trial herein: (1) it presupposes a statutory violation, a fact not in issue with respect to the plaintiff’s possible negligence, and (2) it gave the jury the impression that if one does something unconsciously that is always an act of negligence as a matter of law.
The second example, an analogy posed by the jury itself and in which the trial court acquiesced, involved a person who failed to check his brakes over a period of a year, suddenly finding out while driving that he did not have brakes. In addition to not being related to the facts of this case, this example prompted another error, already alluded to herein, to wit, the trial court’s statement: “I think your ordinary prudent person would probably check his car in a year, wouldn’t he?
Ask all of the people if they would check their car. All six of you are prudent people.” The statements by the court in response to the jury’s questions only served to confuse them and, coupled with the court’s perfunctory charge, impel the conclusion that plaintiff did not receive a fair trial (see Shtekla v Topping, 23 AD2d 750). In conclusion, it is noted that the trial court charged on comparative negligence.
This highlights the jury’s verdict in defendant’s favor and the prejudice inuring to the plaintiff in consequence of the trial court’s “clarification.” Concur — Lupiano, Fein and Lynch, JJ.
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