plaintiff fell in hole despite awareness of its presence
How later courts described this case
- plaintiff fell in hole despite awareness of its presence
Written by the judges who cited it.
The opinion
LIPEZ, Judge,
dissenting:
I do not believe that the evidence of distraction in this case is sufficient to place into the hands of the jury the issue of whether Mrs. Weitz’s momentary forgetfulness was reasonable under the circumstances.
While forgetfulness of, or inattention to, a known danger may under certain circumstances be excused, it is recognized that a too liberal application of the principle can result in fraud and could completely destroy the defense of contributory negligence. Therefore, it is settled that mere forgetfulness or inattention is insufficient. It is not enough to say, “I forgot.” Neither is it enough to merely show that there was some diverting circumstance at the time. In order to keep forgetfulness of, or inattention to, a known danger from constituting contributory negligence as a matter of law, the evidence must be such as to give rise to a reasonable inference that the forgetfulness or inattention relied upon was induced by some immediate, substantial and adequate disturbing cause, to be determined in the light of the exigencies of the situation and the facts and circumstances of the particular occasion.
(Emphasis added.) Connor v. Farmers and Merchants Bank, 243 S.C. 132 , 132 S.E.2d 385 (1963), quoted in Blount v. Melroy Construction Co., 254 S.C. 608 , 176 S.E.2d 407, 408 (1970).
Mrs. Weitz testified that the sudden motion of two chairs towards her caused her momentarily to forget about the hazards in the office floor and to step back. She said that she saw no one touch the chairs, and no evidence was offered to show how the chairs were set in motion. We may take judicial notice of the fact that chairs do not move of their own volition. Unless there is evidence of the cause for *478 the movement, there is no reasonable basis from which it may be determined that the chairs in fact moved, and that it was not merely a figment of the imagination. This extremely limited, unexplained evidence of distraction is not, in my estimation, sufficient to take the question of Mrs. Weitz’s contributory negligence to the jury. See also 57 Am.Jur.2d Negligence § 329; Annot., 74 A.L.R.2d 950 .
I would affirm the order of the court below.