Epstein v. Childs Co.

157 N.Y.S. 210

Opinion

GA VEGAN, J.

The action was for negligence. Defendant is engaged in the restaurant business. On the day of the accident plaintiff entered defendant’s restaurant for the purpose of dining. The plaintiff had given her order, and, when the waitress was about to place a cup of coffee before her, plaintiff raised her arm to procure a napkin from a pile arranged above the table where she was seated. At this moment, as explained by plaintiff, the waitress “accidentally” struck plaintiff’s arm, causing the hot coffee to be spilled on plaintiff, injuring her, and damaging her wearing apparel.

[1] The trial justice, sitting without a jury, awarded a judgment to plaintiff, and fixed her damages at the sum of $125. From a careful examination of the testimony it was at least doubtful whether the evidence of defendant’s negligence was sufficient to sustain the trial judge’s findings; but he saw the witnesses and heard their testimony, and we do not feel justified in substituting our finding for his.

[2] However, I am of the opinion that the damages awarded were excessive. No medical testimony regarding plaintiff’s injuries was given, and plaintiff’s own testimony showed only a slight burn, which healed very quickly.

Judgment reversed, and new trial ordered, with $30 costs to appellant to abide the event, unless the plaintiff will stipulate to reduce the amount of the recovery to the sum of $35 with appropriate costs in the court below, in which event the judgment, as thus modified, will be affirmed, without costs of this appeal. All concur.