Margaret Burgess, Respondent, v. American Ice Company, Appellant

Margaret Burgess, Respondent, v. American Ice Company, Appellant. Second Department, April 18, 1913. Master and servant — negligence — injury to waitress in private residence by dumbwaiter — evidence. In an action by a waitress, employed in a private residence, against an ice company to recover for personal injuries, it appeared that as the plaintiff plaped her hand in a dumbwaiter for the purpose of sending a plate to the floor below, it was suddenly drawn down by a driver in the defendant’s employ in order that he might place ice thereon. Evidence examined, and held, insufficient to show that the act of the driver was in the discharge of any duty he owed defendant or any negligence on the driver’s part, and that a judgment in favor of the plaintiff should be reversed. Rich and Stapleton, JJ., dissented. Appeal by the defendant, the American Ice Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of November, 1912, upon the verdict of a jury for $600, and also from an order entered in said clerk’s office on the 5th day of December, 1912, denying the defendant’s motion for a new trial made upon the minutes. . Newell Lyon [Frank R. Savidge with him on the brief], for the appellant. Sterling Pierson [E. Nothiger with him on the brief], for the respondent. [MAJORITY — Burr, J.:] Burr, J.: Plaintiff was employed as a waitress in the home of Mr. Sandford, who resided at 65 West Fiftieth street, in the borough of Manhattan. This was a private residence. The dining room was on the main floor, and between this floor and the basement there was a dumbwaiter, upon which articles could be transported from one floor-to the other.- Defendant was in the ice business, and Mr. Sandford was one of its customers. On the 31st day of December, 1910, the plaintiff had been serving luncheon in the dining room, and was about to place a plate of cake upon the dumbwaiter for the purpose of sending it to the floor below, and as she placed her hand with the plate in it in the dumbwaiter for that purpose it was suddenly drawn down and her arm was caught and injured. Thereupon this action was brought, and defendant was charged with negligence in that no notice or warning was given of an intention to move the dumbwaiter. It was conceded that it was pulled down by a driver in defendant’s employ. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, this appeal comes. We think that this judgment cannot stand: First, the evidence fails to establish that .the act of the driver in placing the ice upon the dumbwaiter, and incidentally of drawing it down for that purpose, was in the discharge of any duty which he owed to his master, the defendant. There is no evidence of any agreement, either express or implied, upon defendant’s part to deliver the ice at any particular part of the premises in question. This was a private as distinguished from an apartment house, where it may be that delivery of articles by tradesmen is not complete until they are taken to the particular floor occupied by the customer. There is no evidence of the location of the icechest, whether in the basement or upon the upper floor. The only evidence suggesting a reason for the act of the driver is that “ the lady of the house, Mrs. Sandford. She was the one who told him to put the ice on the dumbwaiter.” We think that in so doing he was performing a friendly service for her, rather than discharging a duty which defendant owed to its customer. For- his acts in this regard defendant is not liable. (Higgins v. Western Union Telegraph Co., 156 N. Y. 75; Wyllie v. Palmer, 137 id. 248; Hasty v. Sears, 157 Mass. 123.) Second, there is no evidence of negligence on the driver’s part. It affirmatively appeared that plaintiff could not be seen by him as she approached the dumbwaiter. There,is no evidence either of a general custom or of his particular custom, provided the dumbwaiter was up, to shake the rope or give any warning before drawing it down. There was evidence that on previous occasions it had been the custom of defendant’s driver, when he had put the ice on the dumbwaiter to send it up, to shake the rope to let them know. In addition, the only afirmative evidence in this cáse is to the effect that on this particular occasion the rope was shaken before the dumbwaiter was moved. It is true that plaintiff testified that she did not see this done, but her evidence clearly shows that her attempt to place the plate of cake upon the dumbwaiter was coincident with her approach tó the same, and it might well be' that the rope. had been shaken before she reached it. She testified: “ I really could not tell you that this ice man had put the ice in this tin pan before he started to pull the rope down; or say what he did. I don’t know what he did.” After plaintiff had thus testified, she called defendant’s driver as a witness in her behalf: She. first proved by him what had been already conceded, that on this occasion he did pull the rope which drew, the elevator down. She then proved by him the custom above referred to. He was then asked whether on this particular day he shook the rope, and he replied in. the affirmative. It is true that this question was asked of him by defendant’s counsel, and it was not strictly in cross-examination of anything brought out ón his direct examination. - It was received, however, without objection, and if, under the circumstances, this- testimony should not be considered to be part of plaintiff’s case, his positive testimony in this respect was not improbable, nor was it contradicted by any other testimony, direct or circumstantial, in rebuttal or otherwise. Plaintiff had called this witness. She was under no obligation to call him- except as she might deem it to be to her advantage in making out her case. By calling him she vouched for him as a witness who intended to tell the truth. At the Close of the entire case, therefore, the fact that he did shake the rope before moving the dumbwaiter stood as positively established. The motion at that time made to dismiss the complaint should have been granted. The judgment and order appealed from must be reversed and a new trial granted, costs to abide the event. Carr, J., concurred; Thomas, J., concurred on the second ground stated in the opinion; Rich and Stapleton, JJ., dissented. Judgment and order reversed and new trial granted, costs to abide the event.