
    Kathryn E. Cassasa, Respondent, v. New York Central and Hudson River Railroad Company, Appellant.
    Second Department,.
    November, 1905.
    Negligence— care required of waiter in dining car — amount of recovery reduced,
    A waiter, in a crowded dining car, should reasonably anticipate the rising of a passenger from his. seat, and is negligent if he fails to exercise some degree of care to prevent his tray being thus accidentally struck, and the contents spilled upon another passenger, '
    Where a recovery has been had for damage to several articles of clothing, but it appears, from plaintiff’s own testimony that one article among them was uninjured, the judgment should be modified by deducting its. value.
    Appeal bv. the defendant, the Hew York Central and Hudson River Railroad Company, from a judgment of the Municipal Court of the city of Hew York,, borough of Queens, in favor of the plaintiff, entéred in the office of the clerk of said court on the 4th day of February,. 1905, upon the decision of the court rendered after a trial before the court without a jury.
    
      Charles C. Paulding [Robert A. Kutschlock with him on the brief], for the appellant.
    
      Joseph J. Tuohy, for the respondent.
   Willard Bartlett, J.

The plaintiff was a passenger from Albany to New York on the defendant’s train known as the Empire State Express. She has brought this action to charge the defendant corporation with liability for the negligence of one of its servants, a waiter employed in the dining car, in having carelessly upset a tray full of food and drink which he was carrying through the car in which she was seated, so that the contents of the tray fell upon her clothing and njured the same to her damage in the sum of $150. The evidence leaves little doubt that the tray was upset by another passenger, who rose from his seat and accidentally struck it as the waiter was passing through the aisle. The waiter himsélf admitted, however, that if he had carried the tray at a greater height than he did this other passenger would not have collided with it, and, upon all the proof in the case, I think that" a question of fact was presented for decision by the Municipal Court justice as to whether the waiter exercised due care in his management of the tray under the conditions which prevailed in the car when the food and drink therefrom were overturned upon the plaintiff’s dress. The proof showed that the car was very crowded, the aisle being packed with passengers, and under all the circumstances the rising of a passenger from his seat was an incident reasonably to be anticipated, so that the obligation was imposed upon the waiter to exercise some degree of care to guard against just such an occurrence as actually happened.

: While the proof sufficed, therefore, to sustain a recovery of some amount on account of the negligence of the waiter, I think that the sum awarded in the court below ($150) is larger than was warranted by the evidence. The plaintiff claimed that three garments were rendered useless — a coat, a waist and a skirt-—-and there was testimony tending to show that the value of all these articles taken together was $150. The skirt was so, much damaged as to be practically valueless: The waist did not suffer so much, but was soiled and stained so that an expert dressmaker testified that it could not be worn at all without the skirt, and that it would be impossible to match the goods. The coat, however, was not damaged at all, as the plaintiff herself admitted, and the same expert witness estimated its value at $30. This proof renders it apparent that the plaintiff should not have been awarded anything on account of injury to the coat, and its value should, therefore, be deducted from the amount of - the recovery. '<

■ I advise a modification of the judgment by deducting thirty dollars therefrom, and an affirmance' of the judgment as thus modified, without costs of this appeal to either party.

"Woodward, Hooker, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court modified by deducting thirty dollars from the amount- of the recovery, and as thus modified -affirmed, without costs of- this appeal to either party. .  