App. Div.]

First Department, November, 1907.

upon by an appellate court. For that reason I think this amendment was properly permitted, simply for the purpose of allowing the question to be presented for whatever it may be worth. The record should also contain the matter printed on page 44 of the appeal papers on this motion, from and including line 3 to and including line 26, and the matter contained on page 45 from and including line 9 to and including line 17, and from and including line 22 to and including line 31. It should also contain the matter included in lines 11 and 12 on page 46, and from the word "and" on line 30 of page 46 to and including the words "incompetent and improper." Also the matter contained on page 47, from and including the word "counsel" in line 29 to the end of that page, and on page 48 from and including line 1 to and including line 8.

The order appealed from should, therefore, be reversed and the case remitted to the court below, with directions that it be resettled to conform with the requirements of this memorandum.

INGRAHAM, MCLAUGHLIN, HOUGHTON and SCOTT, JJ., concurred.

Order reversed and case remitted to the court below as stated in opinion. Settle order on notice.

CONRAD LATHER, Respondent, v. PETER F. BAMMANN, Appellant. First Department, November 22, 1907.

Landlord and tenant negligence - Tenement House Act-failure to light hall-injury by fall down staircase contributory negligence

of tenant.

The failure of a landlord to keep a proper light burning in the public hallways of a tenement house as required by section 82 of the Tenement House Act is evidence of negligence, and may justify a recovery for injuries received by a tenant falling down a staircase in the dark in the absence of contributory negligence on his part.

But a tenant who, with knowledge that a light is not kept burning in such hallway after ten o'clock at night, rises before dawn and closes behind him the door of his dining room, which if left open would have lighted the hallway, and in the dark gropes for the handle of the bathroom door across the hall knowing that adjacent thereto is the staircase down which he falls and is injured, is guilty of contributory negligence and is not entitled to recover. PATTERSON, P. J., and HOUGHTON, J., dissented, with opinion.

First Department, November, 1907.

[Vol. 122. APPEAL by the defendant, Peter F. Bammann, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of March, 1907, upon the verdict of a jury for $1,500, and also from an order entered in said clerk's office on the 26th day of March, 1907, denying the defendant's motion for a new trial made upon the

minutes.

Edwin A. Jones, for the appellant.

Alexander B. Greenberg, for the respondent.

INGRAHAM, J.:

The plaintiff seeks to hold this defendant responsible for injuries sustained in falling down the stairway of a tenement house of which defendant is the owner and in which the plaintiff at the time of the accident resided. The 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 building 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 hall after ten o'clock at night. He was in the habit of getting up at six o'clock; he then had his breakfast, and sometimes went to the bathroom and at half-past six went to work. On the morning of January 7, 1904, after his breakfast he came from the dining room into the hall. What then happened he described as follows: "I feel with my hand around and I kicked, I feel with my feet and I tumbled the whole way down. I was feeling with my hands looking for to feel

App. Div.]

First Department, November, 1907.

the knob and I could not find it." The knob of the bathroom door was about six and one-half inches from the stairway. On this particular morning there was no light in the dining room, but there was a light in the kitchen which made it possible to see in the dining room without a light, but after going out from the dining room into the hall he shut the door behind him. Having thus shut the door from the dining room which shut off all light into the hall he started to feel for the knob on the bathroom door, located but six and one-half inches from the stairway. A daughter of plaintiff testified that she heard her father moan, and came into the hall, and that as soon as she passed the bathroom door to the head of the stairs she was able to distinguish the stairs, and from the head of the stairs saw plaintiff at the foot.

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 burning 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. From 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 right 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

First Department, November, 1907.

[Vol. 122. hallway, which caused the accident, was thus brought about by his own act in excluding the light from the dining room, which would have enabled him to see the door to the bathroom without exposing him to the risk of falling down the stairway. The plaintiff knew that adjoining the bathroom door was the stairs, and yet deliberately closed the door and shut off light by which he could see where the door of the bathroom was, and in groping around in the dark, mistook the stairs for the door. The immediate cause of the lack of light was the act of the plaintiff in closing the dining room door, which excluded it from the hall.

The principle applied in the case of Piper v. N. Y. C. & II. 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 he done so, the accident could not, within any reasonable probability, 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 he was unable to see the door of the bathroom, and then, instead of opening the door through which he had just passed and which would have caused the hall to be light enough to avoid danger, knowing that the door to the bathroom and the stairs were close together, proceeded to grope around in the darkness until he fell down the stairway.

I think this was clearly contributory negligence and the judg

App. Div.]

First Department, November, 1907.

ment and order must, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.

MCLAUGHLIN and Scorr, JJ., concurred; PATTERSON, P. J., and HOUGHTON, J., dissented.

HOUGHTON, J. (dissenting):

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 feel, 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 slowly.

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.