Alessi v. Kew Gardens Luncheonette, Inc.

In an action to recover damages for personal injuries, the appeal is from a judgment entered on a jury verdict in favor of respondent. Respondent, a patron on appellant’s premises, received burns when he came into contact with the contents of a flaming pot of oil while he was voluntarily acting in the interest of appellant in the removal of said pot. Judgment reversed and a new trial granted, with costs to abide the event. There was no proof that any person other than respondent was in jeopardy. In our opinion, error was committed (1) in the court’s instructions to the jury with respect to negligence in causing the fire and respondent’s status as a rescuer, and (2) in submitting such issues to the jury for determination. All that was required to he determined was whether respondent was entitled to recover damages caused by negligence on the part of the appellant’s representative in handling the pot of oil under the circumstances disclosed.

Nolan, P. J., Wenzel, Beldoek, Murphy and Kleinfeld, JJ., concur.