Evander Conway, Respondent, v. George Naylor, Jr., and John Naylor, Copartners, Doing Business under the Firm Name and Style of Naylor Bros., Appellants

Evander Conway, Respondent, v. George Naylor, Jr., and John Naylor, Copartners, Doing Business under the Firm Name and Style of Naylor Bros., Appellants. Second Department, December 17, 1915. Blaster and servant — negligence — injury by set-screw projecting from revolving shaft — contributory negligence — known danger — forgetfulness. Where one employed to install machinery for making bricks knew that a set-screw projected from the surface of a collar which he himself had fastened to a shaft and he erected a platform to enable him to take measurements in close proximity to the shaft, which was then in motion, he cannot recover for injuries received owing to the fact that his clothing caught in the set-screw while he was engaged in measuring, even though the defendant’s superintendent, after having his attention called to the projecting set-screw, ordered the plaintiff to go on with the work and although the foreman of the brick company refused to stop the machinery at the plaintiff’s request. No recovery can be had upon the theory that the plaintiff’s absorption in his work caused him to forget the projecting set-screw so that he inadvertently came in contact therewith. Appeal by the defendants, George Naylor, Jr., and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 12th day of April, 1915, upon the verdict of a jury for $6,500, and also from an order entered in said clerk’s office on the 23d day of April, 1915, denying defendants’ motion for a new trial made upon the minutes. Plaintiff is suing his employers, for whom he had worked eighteen years. Defendants were accustomed to send him out to assemble and set up brick machinery which they manufactured, to be installed at different brick yards. For five years plaintiff had been engaged on these special machines. Defendants contracted to put up a mixer machine at a brick yard near Beacon. In this yard such machines take their power from horizontal shafting of about three inches diameter, running eight or ten feet above the ground, leading out from a central power plant. Each separate machine connects with this shafting by a counter shaft with a friction clutch having two gears. In the old machinery which defendants took down was an iron collar for this shaft, its purpose being to stop the lever from sliding past it. This old collar was taken away by defendants and bored out and shipped back, to be put on the extended shafting for the new machine. The collar went around the shaft in two halves, clamped together by two setscrews. On Thursday, two days before this accident, as plaintiff attached this collar, he found that a set-screw which came with it, even when screwed in tightly, projected five-eighths of an inch above the collar’s surface. He pointed this out to one Cite, defendants’ superintendent, who said that to-morrow he would send other screws, but to go on with the work. On Friday the screws did not come, but there was some talk with Cite, who asked plaintiff to have the job finished Saturday; he also promised plaintiff he would ask the brick yard foreman not to put on the power while plaintiff wras finishing the installation. But at seven A. M. Saturday the yard plant started up and kept this shafting, collar and all, turning with this set-screw still in the condition it had been since Thursday. The foreman refused plaintiff’s request to stop, saying he must be making brick. After plaintiff had done other finishing work he had to measure above this shafting for placing the friction lever for connecting the power with the new machine. With a helper he put up a plank platform about five or six feet above the ground, and about two and one-half feet beneath this collar. To take these measurements plaintiff got on this platform he had erected, standing sideways toward the main shafting, which was about a foot or six inches away. The clutch was at plaintiff’s front, and this set-screw about a foot in his rear. By an inadvertent motion, probably turning and bending over, his trousers were caught in this set-screw, whirling him about the shaft, and then throwing him to the ground, injuring the right . leg so that it was amputated below the knee. On the first appeal it was held that plaintiff was negligent, having himself set up the collar with the projecting screw, and connected the shafting and erected the platform, so that he knew of this danger. The judgment was then reversed and a new trial granted. (166 App. Div. 904.) On this second trial respondent claimed that he was absorbed in making these measurements, which induced a concentration of mind, which produced “ momentary forgetfulness ” of his peril. Thomas F. Curran [James B. Henney with him on the brief], for the appellants. Sydney A. Syme, for the respondent. [MAJORITY — Putnam, J.:] 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 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.