109 N.Y.S. 156 | N.Y. App. Div. | 1908
The defendant appeals from a judgment and order denying a motion for a new trial in an action brought to recover damages for the death of the plaintiff’s intestate alleged to have been caused by-the defendant’s negligence. The deceased occupied rooms on the third floor of a tenement house owned by the defendant. His death resulted from a fall down the flight of steps leading from the hallway on the second floor to the entrance hall, and it is alleged by the plaintiff that the. accident was due to the defendant’s negligence in not maintaining a light in the hallway on the second floor as required by the statute (Laws of 1901, chap. 334, § 82), and in suffering the stairs to be out of repair. The evidence showed that
Was there sufficient evidence to warrant the jury in inferring that the deceased fell from the sixth step from the top and that the fall was due to his stumbling against or catching his foot in the loosened piece of zinc ? I think the expression of opinion by the witness who heard him coming' down the stairs must be rejected for
Moreover, no circumstance is disclosed warranting the inference ' that the deceased himself exercised due care. Although we do not say, as matter of law, that it is negligence to run down a dimly lighted stairway, whatever evidence there is in the record tends to
The judgment and order should be reversed.
Woodward, Jenks, Hooker and Gaynor, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.