Block v. Sherry

I cannot concur in the affirmance of the judgment. The closing incidents of the trial mark the method by which the learned justice reached the result arrived at on the trial, and in my judgment his course was erroneous. There are other features in the trial of the case which also force me to believe that justice can but he conserved by a retrial. I, therefore, dissent.

Judgment affirmed, with costs.

This action was brought to recover the value of a dress, worn by the plaintiff in the defendant’s restaurant on the evening of June 26, 1903, and claimed to have been ruined by the negligence of one of the defendant’s waiters. ■

On the trial the plaintiff gave evidence tending to show that while the plaintiff and her husband were dining on1 the veranda of defendant’s restaurant, one of the waiters spilled part of a glass of water over her dress, which completely ruined it, the material being of such a character that it could neither be renovated nor repaired so as to be of further use, and that the water was spilled through the negligence of the servant, and that the plaintiff in no way contributed to the accident. The defendant’s testimony tended to show that the water did not come from a glass, but came from a platter containing about a half a glass of water resulting from melted ice, and that as the waiter reached over for the platter the plaintiff moved her elbow back and knocked against it, causing it to fall on the dress. On this conflict of evidence the justice determined the issues in favor of the plaintiff, and while he might well have found from the evidence submitted, in favor of the defendant, yet there is not such a preponderance of evidence in favor of the defendant as would warrant us in reversing the judgment on that ground. The defendant strenuously contends that a restaurant-keeper is not an insurer of the effects of the customers who may have accepted the invitation held out by him, but at most, is required to use only ordinary care, and this is the well-settled law in this State. The strict rules governing the liability *344of hotel and innkeepers do not apply to the keeper of a restaurant. Carpenter v. Taylor, 1 Hilt. 193; Simpson v. Rourke, 13 Misc. Rep. 230; Montgomery v. Ladjing, 30 id. 92. But while this is so, they are still responsible for damages caused by the negligence of their servant while in the conduct of the business for which they are employed, under the well-settled rule of respondeat superior. Mott v. Consumers’ Ice Company, 73 N. Y. 543, 547; Girvin v. N. Y. C. & H. R. R. R. Co., 166 id. 289, 291; 20 Am. & Eng. Encyc. of Law (2d ed.), 163.

The appellant urges that the mere fact of the spilling of a glass of water in a crowded restaurant is not negligence. Whether it is negligence or not we think depends altogether upon the circumstances, and in this case the justice who tried the action and had the witnesses before bim arrived at the conclusion that the spilling was through the negligence of the servant. It is quite true that the plaintiff cannot sustain her judgment if she in any way contributed to the damage complained of, but the finding of the judge negatives any such contention. At the close of the testimony the defendant moved to dismiss the complaint, which was denied. The only other point raised by this motion was the sufficiency of proof of damages; but if the testimony of the plaintiff herself is to be relied upon, as the trial justice evidently believed, then the evidence was quite sufficient to warrant the judgment rendered.

Hear the close of the testimony the defendant’s attorney asked for an adjournment of the trial to enable him to procure witnesses from the store which sold the goods to the plaintiff, to prove that, as a matter of fact, she only paid one dollar and twenty-five cents per yard for her dress, instead of two dollars, which was denied by the court. In the absence of any proof of surprise, the denial of an application to adjourn for the purpose of calling another witness, made at that stage of the trial, can scarcely be termed an abuse of discretion on the part of the trial justice.

The fact that a bill of particulars had been demanded by the defendant at the time of the joining of issue, but had never been served, is not, of itself, ground for reversal. The *345record does not show that this was called to the attention of the court, or that the defendant insisted upon the giving of such a bill'before going to trial, or took any exception to going to trial without it.

We do not find any reversible error in the record, and the judgment should, therefore, be affirmed, with costs.

Freedman, P. J., concurs.