
    Michael Downs, Appellant, v. Brown Realty Company, Respondent.
    Second Department,
    September 10, 1912.
    Landlord and tenant — negligence — Tenement House Law—failure to light hall — injury by fall down stairs — erroneous nonsuit.
    Where the public stairs of a tenement house were narrow at the inside of a curve and wide at the outside and were not properly lighted as required by section 76 of the Tenement House Law, a visitor who, in descending the stairs, placed his right hand against the wall but does not remember whether his left hand was on the rail, was not negligent, as a matter of law, and his complaint in an action for injuries sustained by a fall down such stairs should not have been dismissed.
    Appeal by the plaintiff, Michael Downs, from a judgment of the County . Court of Kings county in favor of the defendant, entered in the office of the clerk of said county on the 11th day of May, 1911, upon the dismissal of the complaint by direction of the court after a trial at a Trial Term of said County Court.
    
      William H. Good, for the appellant.
    
      Rufus O. Catlin, for the respondent.
   Thomas, J.:

Plaintiff was injured by falling down the stairs in a house let to several tenants, who had the use of the halls and staircases. The stairway was at the rear of the main entrance. There were some six steps with a wall on either side, then a short turn, and several more stairs led to the landing on the second story. The stairs from the second story to the third story were over the first flight. ' In the entrance hall was a gas light suspended from the ceiling ten and a half feet from the stairs, and on the second story was a similar light fifteen feet from the top of the stairs, and there is ample evidence that these gas jets dimly lighted parts of the stairway, and that at least at the place where the plaintiff fell he could not see the stairs, and that he was obliged to feel his way down. The treads of the stairs were narrow at the inside of the curve and wide at the outside. The evidence is ample that the stairs were difficult in the light, and dangerous in darkness of obscurity, and that on the evening in question the facilities for lighting them were wholly inadequate. But it is contended that the plaintiff was per se negligent,' and so the burden of care and the penalty for the accident is lifted from the landlord, who even by statute was required to keep a proper light near the stairs (Tenement House Act [Laws of 1901, chap. 334], § 82; now Tenement House Law [Consol. Laws, chap. 61; Laws of 1909, chap. 99], § 16, as amd. by Laws of 1911, chap. 388), to one of the class of persons whom the law was intended to protect. In other words, the ruling thus far is that the beneficiary of the statute loses its benefit if, found at the stairs in the darkness, he proceeds at least without finding and clutching the railing. There may be states of fact that justify such conclusions of law, but they are not present. The.plaintiff with his wife had called on a friend, whose door was a few feet away from the top of' the stairs, and had come out followed by his friend, who shut the door behind him. The plaintiff had no knowledge of the stairs save as he gained it in ascending, when his way led him on the side where the treads were uniformly wide and where a wall for the first six steps and a handrail for the rest of the way aided the ascent. When he came down he placed his right hand against the wall, but does not remember whether his left hand was on the rail, and so he felt his way along. What should he have done ? Stopped at the head of the stairs and demanded a light of his friend, or in its absence retreated ? If he was privileged to go down without himself providing the light that the statute commands the landlord to furnish, should he have recalled that there was a railing for his left hand and seized it, if indeed he did not ? The law does not prescribe the manner of descending dark twisting stairs. Perchance it was the more useful for his equihbrium to. feel his way with one hand than to stretch out both as he was winding downwards. But that is a matter of argument, and the facts and proprieties should be discussed to the jury. Before such proper tribunal the defendant may be convincing, but the law has no strict rule that a departing visitor on unfamiliar stairs, merged at a sharp turn in total darkness, must-pot venture to use the stairs at all, or must retreat, or must stretch out both hands to feel or seize.

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

Jenks, P. J., Burr, Woodward and Rich, JJ., concurred.

Judgment of the County Court of Kings county reversed and new trial ordered, costs to abide the event.  