46 N.Y.S. 1 | N.Y. App. Div. | 1897
Between the hours of six and seven on the evening of the 29th . day of April, 1893, plaintiff’s wife was proceeding down the back stairs from her apartments on the fourth floor to the back yard for wood. On one side of the stairway was a handrail about eighteen inches from the wall and on the other a partition wall. What happened Mrs. Gorman described as follows: “ The stairs were so dark I could not see my hand. I had to hold the banister while I was going all the way down. There was no gas lit. There was a gas fixture right over the stairs, but the meter was kept locked by the janitor in a little place in the wall. There was another fixture on the second floor, two flights from the street. During all the time I lived there the janitor had charge of the lighting of the gas. Tenants were not allowed to light it. It was kept locked. The janitor had the key. I had gone down these stairs and reached almost to the turn in the last flight, and was about twelve steps from the bottom of the stairway, when my right foot stepped upon something on tlie stairway and I .fell, and only that I held on to the banisters I would have fallen down. I felt that it was a piece of wood that I stepped on, but did not see it until after the janitor had lit the gas. He came around right after the accident and lighted it. I was holding the banister with my right hand and was going down carefully because it was so dark.”
As soon as the injured woman had told the story of the accident the trial judge advised counsel that without other evidence of negligence there could be no recovery. It being conceded that the plaintiff could not show other negligent acts, whether of omission or commission, the plaintiff rested, whereupon his complaint was dismissed.
The stick of wood carelessly left upon the stairs caused the plaintiff’s wife to fall. The evidence, however, does not even suggest that the defendant is responsible for its presence there. But, urges his counsel, although defendant was not responsible for the presence of the stick of wood on the stairs, and Mrs. Gorman would not have fallen, had she not stepped on it, still she could have seen it and avoided it had the gas in the hall been lighted. True, but the presence of a stick of wood on the stairway was not a probable danger against which the owner was called on to protect his tenants by
The Hilsenbeek case was decided after O'Sullivan v. Norwood(14 Daly, 286), which goes farther in the' direction of appellant’s contention than any case we have found.in this State. Indeed, it may be said- that it stands cpiite alone in the position taken by it. But even that case does not assert that the mere failure to. light a hall and stairway constitutes negligence. In that case a part of the stairway was lighted from the street, while the lower step of the second flight was so obscured in darkness as to have induced the plaintiff to- believe that there was no- more steps. This proved a mistake and the result was a fall, an-'injury and a recovery by the plaintiff.
The judgment should be affirmed, with costs.
Vah Brunt, P. J., Rumsey, Williams and Ingbaham, JJ., concurred.
Judgment affirmed, with costs.
