104 N.Y.S. 1076 | N.Y. App. Div. | 1907
This is-an action to recover damages for personal, injuries alleged to have been sustained by the. plaintiff through the negligence of the
The charge of negligence on the part of the plaintiff is that the • hallway and stairs which were used in common by all of the tenants of the building, were dark and unlighted, and that the Tenement
' There was conflicting evidence as to whether or not the hall was sufficiently light to enable a person to read in. every part thereof without the aid of artificial .light. The first part of the statute with respect to the removal of wooden panels in the doors located at the end of the hall was not complied with, -but the alternative provision providing, in effect, that it is sufficient- if “ a fixed sash window -of wire glass of an area of not less than five square feet”' be cut into the partitions separating. the hall from a room which;
The learned- trial justice, in charging the jury, read to them all of sections 72 and 80 of chapter 334 of the Laws of 1901, as amended by chapter 352 of the Laws of 1902, the first section of which related to the requirement in the construction of tenement houses thereafter erected. As this tenement house had already been erected, that part of the statute was not applicable to the case and • may well have misled the jury. Counsel for the defendant admitted that this was á tenement house within the meaning of chapter 334 of the Laws of 1901, as amended by chapter 352 of the Laws of 1902. He excepted to the court’s reading the entire two sections to the jury, and the court thereupon instructed the jury as follows ; “ I have read all the law, the last part beginning ‘ In every now existing tenement5 applies. You may take an exception to it.” Counsel for the defendant thereupon further excepted to the court’s reading the remaining part of the statute to the jury, upon the ground that there was no evidence of any violation of it, to which the court replied: “ I am not charging you there was a violation of the statute. I am giving you the law' that applies to the case and it is for you to say upon the facts whether there has been a violation of the statute.” We find no evidence in the record which justified the court in submitting to the jury the question as to whether there was a violation of the statute, and, therefore, a new trial must be granted.
Moreover, we are of opinion that defendant’s motion for a dis- ■ missal of the complaint or the direction of a verdict should have been granted. There is no evidence of negligence on the part of the defendant which" either required or justified the submission of the case to the jury. Even if the hall were not properly lighted or the statute with respect to the construction of windows for the admission of light to the hallway had been violated, this was not the
It. follows, therefore, that the judgment .and order’ should be. - reversed and a new trial granted, with costs to appellant to abide the event.. -
Patterson, P. J., McLaughlin, Houghton and Scott, JJ.,, concurred.
Judgment and order reversed, new trial-ordered,.costs to appellant . to abide event. ' -'