
    Margaretha Baumler, Respondent, v. Theodore Wilm and Others, Appellants.
    Second Department,
    March 31, 1910.
    Negligence—injury to visitor at tenement house —failure to light halls — contributory negligence. i
    A visitor in a tenement house who was injured by falling down an unlighted stairway cannot recover of the owner on the ground that he had failed to light the hallway, and maintained a step twelve inches in height instead of eight inches, contrary to the provisions of the Tenement House Law, if the proximate cause of her injury was her contributory negligence in attempting to descend the stairway in the dark and in not using an outside entrance which was available.
    Hibschbeeg,-P. J., dissented,
    Appeal by the defendants,. Theodore Wilm and others, from .a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 9th day of November, 1909.
    
      Anthony P. Jlodgins, for the appellants.
    
      Saul S. Myers \Louis Salant with him,on the brief], for the. respondent.
   Woodward, J.:

The defendants were the owners of a tenement house in the borough of Brooklyn. On July 4, 1909, the plaintiff was a guest of her daughter, who was a tenant of the defendants, occupying rooms on the ground floor of the premises. At about one o’clock in the afternoon óf that"day she started, to go down a flight'of stairs to the cellar.for the purpose of emptying a garbage pan.. Tlie entrance-to the stairway was from the inside hall. Both the hall and the cellar stairway were dark. There were no artificial lights." The plaintiff, carrying the’ garbage pan in her left hand, opened the cellar door with her right; and, as she was in the act of taking the first step down, she reached for the handrail, missed it, and fell to the bottom of the stairs, sustaining injuries for which she recovered a judgment of $206. The defendants appeal.

The action was brought upon, the theory that the defendants were chargeable with negligence as a matter, of law by reason of not having complied with the provisions of the Tenement House Law relating to the lighting of hallways. This is not sufficient to sustain the judgment, conceding that all the allegations of the complaint on that point were proved, in view of the obvious contributory negligence of the plaintiff. The want of lights "was not the proximate cause of the accident. The dangers of the situation were obvious; a lighted-candle carried by the plaintiff would have, overcome them. ■The plaintiff’s errand was not one of necessity. She had been to the cellar before, through an outside entrance, which was'available to her on this occasion. Her excuse for not taking this route was that she did not want to be seen carrying a garbage pan on Sunday. There is some evidence that the handrail in the cellarway did not reach to the top of tile stairs, and that the first step down was twelve inches, and not eight, as required by law. But this does not aid the plaintiff in overcoming the inference, clearly deducible from her own testimony, that she was guilty of contributory negligence. She assumed the obvious risk, and the defendants should not be / • required to pay for her error of judgment.

The judgment should be reversed and a new trial ordered, costs to abide the event.

Jenks, Burr and Carr,' Jj., concurred; Hirschberg, P. J., dissented.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  