78 N.Y.S. 342 | N.Y. App. Div. | 1902
The plaintiff’s intestate,-Joseph Ziegler, sustained fatal injuries by falling on a staircase in a house owned by the defendant in the borough of Manhattan in the city of New York. It was a tenement house with four floors, including the ground floor. There were two apartments on each floor, with the exception of, the first. The decedent and his family occupied one of the apartments on the third floor. The entrance to the apartments above the first story was from a front door opening into a hall. There was a fanlight over the front door and a window at the rear of the hall. The stairway giving access to the upper apartments was at the left of the main hall and beginning at a point about eleven feet from the front door. This staircase consisted of three steps rising from the
On the subject of the condition of the staircase the evidence was conflicting. There was proof tending to show that the decedent’s foot caught in a broken india rubber covering on the fourth step. The decedent’s widow testified that upon her hearing the noise and going down the stairs she found that a slipper worn by the intestate at the time the accident occurred was caught in the broken .india rubber covering, and that it was fixed there in a horizontal position. There was also evidence tending to show that the stairs had been out of repair for some months prior to the accident, and that the attention of the owner or those in charge of the house for him had been called thereto. All this evidence, however, was contradicted and an issue was presented for the consideration of the jury, with the evidence in such a state that they might have found for the defendant on this issue and still have found against him on the remaining issue, which involved the condition of the hallway as to a.sufficiency of light for those lawfully using the" hallway.
The Tenement House Act, which became a law April 12, 1901, provides in section 80 that “ in every now existing tenement house four stories or over in height, whenever a public hall on any floor is not light enough in the daytime to permit a person to read in
By section 1320 of chapter 378 of the Laws of 1897 it is provided that in “ every ténement-house in the said city, in which there is a hallway or hallways, with no windows opening from such hallway outside of said house, a light shall be maintained by said owner or lessee in each such hallway, between the hours of eight a. m. and ten p. m. of each day unless said hallway shall be otherwise sufficiently lighted.”
■ It is a matter of grave doubt whether the provisions of the Tenement House Act apply to the premises in which this accident occurred. The inference to be drawn from the testimony is that the construction, of the hall on the day the accident occurred was the same as had existed long previous to that day, and if the defendant had a year, or such other time as might be designated by proper authority, within which to make the alterations required by the 80th section of the Tenement House Act, he could not well be charged with neglect under it in failing to make required changes within less than a month after that act went into effect. But be that as. it may, and assuming that the defendant had failed to comply with some provision of statutory law, the trial justice sent the cause to the jury upon the issue of non-compliance with statutory provisions under instructions which compelled them to find that negligence of the defendant was conclusively established. The
In Connolly v. Knickerbocker Ice Co. (114 N. Y. 108) it is said: •“ While the violation of such statute may be proved as a fact for •consideration by the jury, such violation does not for all purposes necessarily establish negligence.” And in Graham, v. Manhattan R. Co. (149 N. Y. 336) it is stated that “ the defendant’s disregard •of the statute which required gates upon every passenger car used upon its elevated railroad, and that they should be kept closed while the car was in motion, was also evidence of its negligence.” The -effect of the controlling authorities on the subject is to establish the proposition that the violation of the statute is evidence, but not con-clusive evidence, of negligence.
The judgment and order appealed from should he reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., O’Brien and Hatch, JJ., concurred; Ingraham, J., concurred in result.
Judgment and order reversed, new trial ordered, costs to appellant • to abide event.
Willy v. Mulledy.—[Rep.