106 N.Y.S. 790 | N.Y. App. Div. | 1907
Lead Opinion
The plaintiff seeks to hold-this.defendant.responsible.for injuries, sustained in falling down the- stairway, of a tenement house of •wihieh defendant, is. the. owner and .in which, the plaintiff,,at the time of the accident resided,. Tl\e plaintiff occupied the entire. third floor of the building No. 262'West Ninteenth street, in the city of New York. In the rear of this bmlding was'the kitchen and'. adjoining it the dining -room,, both rooms opening into, .a hall. Immediately opposite the kitchen door a stairway,descended -to the, street. Immediately alongside this stairway there, was a bathroom, the door of which also entered into the hall between the dining room door and the stairway. A person coming out of the dining room door to enter the bathroom door would turn to- the- left, and ■ there was but the Width of a partition between the stairway and-the bathroom door. The. plaintiff had occupied these ..premises for about eight, months, and was perfectly, familiar with-the,situation.. There Was a gas jet in this hall, which was'lighted at sundown,'but was extinguished at. ten o’clock at night, so that after that hour the hall was dark; The plaintiff had noticed -this, situation and. .had never known any -gas to be- lighted in. the haM after ¡ten: o’clock ‘at night.' He Was'in the halfft of getting''upl at "six o’clock; lie -then had his breakfast,, and sometimes went to the .bathroom arid at,. -lialLpast six went, to, work, On -the morning, of.-Janpary %, 1,90.4, after’his breakfast he came-from, the dining,,room into-.¡the .ha'll. W'liat then happened lie described as-follows': “L' feek with My hand around and T kicked, I feel with my feet and I tumbled the whole way down. . I was.feeling with iny hands- looking, for to, feel
The only negligence alleged is a violation of section 82 of the Tenement House Act (Laws of 1901, chap. 334), which provides: “In every tenement house a proper light shall be kept bturning by the owner in the public hallways, near the stairs, upon the entrance floor, and upon the second floor above the entrance floor of said house, every night from sunset to sunrise throughout the year, and upon all other floors of the said house from sunset until ten o’clock in the evening.” It seems to have been conceded, by the defendant that he had failed to- comply with this provision of the statute. This failure to comply with the provisions of the statute was evidence of negligence which would justify a recovery, unless the plaintiff was guilty of contributory negligence. Bronx this evidence there would seem to be no question but that, if the dining room door into the hall had been left open, there would have been sufficient light'to have enabled the plaintiff to find the door into the bathroom. The plaintiff was perfectly familiar with the situation, was in the habit of going from the dining room into the bathroom, and knew the stairs were light alongside of the bathroom door. He had lived in this apartment about eight months; knew that the gas had never been lighted upon this floor after ten o’clock at night, and knew it was not lighted on the morning: in question. When he walked out of the dining room he knew that the hall was dark, yet he deliberately shut the door and excluded what light there was from his apartment, knowing that the door of the bathroom and the stairway' were immediately adjoining. The darkness of the
The principle applied in the case of Piper v. N. Y. C. & H. R. R. R. Co. (156 N. Y. 224) and Brugher v. Buchtenkirch (167 id. 153) bars a recovery. In. .the latter case,, which was. an action to recover damages caused by the negligence, of the defendant in failing to keep a hallway lighted, it. was said: “ But whatever may be the reason that the plaintiff was unable .to perceive the condition of the hall, that inability imposed Upon her the., duty of' exercising greater caution or of refraining from .proceeding further in the building without first finding 'out where she might safely go; ” quoting with approval the following from the Piper Case (supra): "The plaintiff was guilty of contributory negligence, in. utterly failing to’ use that prudence which was especially incumbent upon him under the circumstances of the situation. The darkness called upon- him to use it, and had lie done so, the accident: could not, within any reasonable probabilly, have happened. A person whose power of' vision is temporarily obstructed by some' supervening condition should take the greater care and should, if it be possible, await its passing away. If he neglects to proceed cautiously, he must accept the consequences of. his undue precipitation.”
The present case is much stronger against the plaintiff, for here the plaintiff’s voluntary act so obstructed ■ the light that lie was unable.'to see the door of the bathroom, and. then, instead of opening the door-through which, he had jtist passed and which would have caused, the hall to be light enough to avoid danger, knowing that the door to the bathroom -aiid the stairs were close together, proceeded to grope arotind in the darkness until he fell down the stairway.
I think this was clearly contributory negligence and the - judg
McLaughlin and Scott, JJ., concurred; Patterson, P. J., and Houghton, J., dissented.
Dissenting Opinion
I do not think the plaintiff was guilty of contributory negligence as a matter of law. He'had the right- to use the hallway and it was necessary for him to do so. As he left the dining room, he testifies, he began to feol, presumably with his outstretched hand, for the knob of the bathroom door. He repeatedly describes himself as feeling along with his right hand-. Under such circumstances it is fairly to be inferred that he was walking carefully and slqwly.
The situation is unlike that in Brugher v. Buchtenkirch (167 N. Y. 153), In that case the plaintiff was making a tour of discovery of a strange building and deliberately walked into a dark passageway.
In Kenney v. Rhinelander (28 App. Div. 246 ; affd., 163 N. Y. 576) the tenant knew of the torn carpet ,on .the stairway which he was descending in the dark. This court held that whether or not he was guilty of contributory ’negligence was a question for the jury.
And in Brown v. Wittner (43 App. Div. 135) this court also held that the using of a stairway in darkness was not contributory negligence as matter of law and reversed a nonsuit.
The prevailing opinion concedes that the question of defendant’s negligence was for the jury, and I think plaintiff’s contributory negligence was also a matter for the jury which they properly decided.
I think, therefore, the judgment should be affirmed.
Patterson, P. J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event;
