
    Annie Donnelly, Appellant, v. Samuel Katz, Respondent.
    
      Negligence landlord and tenant —failure to light hallway — contributory negligence.
    
    Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk- of the county of Kings on the 30th day of November, 1908, in favor of the defendant dismissing, plaintiff’s complaint at the close of her evidence.
    Judgment affirmed, with costs. No opinion. Jenks, G-aynor and Burr, JJ., concurred; Woodward, J., read for reversal, with whom Miller, J., concurred.
   Woodward, J.

(dissenting):

'The learned court at the trial dismissed the complaint upon it's own motion on the'ground that there was a failure to show freedom from contributory negligence, saying: “ I am going to hold that you have not made out absence of contributory t negligence, but more than that the case discloses contributory negligence.” Of course, in a case of this kind, the plaintiff on appeal is entitled to the most favorable view of the evidence which the jury might properly have taken, and I am of opinion that the learned court erred in its disposition of this case.- The facts disclosed, or it-was assumed that they did, that the defendant was guilty of negligence in that he had failed to comply with the provisions -of the Tenement House Act requiring halls in such buildings t-o be lighted at' night. The plaintiff testified that there was no light in the hall on the occasion -of the accident; that the landlord had repeatedly refused to supply lights. The plaintiff testified, without objection, that the premises occupied by her was a tenement house; that she had been there about two months; that no light was furnished in the hall; that she had befen in the habit .of lighting the toilet room, directly opposite her dining room, with a small lamp;, that On the night of the 21st of October, 1905,'between seven and eight o’clock, she was getting supper for her children who were coming in; that she took the little lamp, as was her custom, walked out along the hall, "and I put my hand over and felt the knob of the door. Walked as far as the knob of the door when I thought I had the right handle. In going there I walked along like that, (indicating). I thought I had the right handle of the door and opened it, it was partly open and I thought it was the toilet and stepped in and went down, and I don’t know any more.” It seems that there were two.doors very near together; one .door led into the toilet room, the other to the cellar, and it was this cellar-door which was- partially opened and which her hand found as she groped in the darkness. A picture in evidence shows the two doors to have been separated only by the casing, and the plaintiff testified that she had not at that time lighted her dining room or kitchen; that it was about their supper time; that she had prepared supper and was waiting for her boys to come in; that there was some light coming into her rooms from outside, but that the hall was pitch dark when she started to place thé light in the toilet room. This was not the case of a stranger going heedlessly forward into a dark hall, nor yet that of a passenger on a sleeping car going out and opening a vestibule door; it was a mother preparing. the home for the incoming of her children. The statute made it the duty of the landlord to light the halls. He neglected this duty, and the mother was placing a light in the toilet room, this being necessary because of the absence of light in the hall. In performing this duty, which belonged to the landlord, and while feeling her way in the darkness, she found a door partially open. She knew that the two doors were near together, but she was not hound to keep all the details in mind all of the time, as a matter of law, to meet the requirements of reasonable care. She testified that she walked along the hall, feeling her way, which was an evidence of some degree of care; it was evidence that she was not carelessly proceeding, and whether it was negligent for her to step inside .of a partially open door, believing that she was entering the toilet room; was, ■ I believe, a question for the jury. She could safely step into the toilet room; there was no danger to be apprehended in doing that. The danger lay in stepping into the cellarway, which, we may infer from the evidence, descended ■immediately from the doorway, and which was such a danger as the statute was designed to guard against. It is probably true that it was not negligence on the part of the landlord to construct the hallway and doors as was done in this case, provided he had complied with the statute and provided light; but to maintain these doors, one of them necessarily used many times each day, and one of them leading to a dangerous descent, in juxtaposition, was to invite just such an accident as has happened. While it is true, of course, that the plaintiff, knowing that the hall was dark, had no right to rely upon the defendant having discharged his duty, she had a right, in the exercise of reasonable care, to go to this toilet room for the purpose of placing a light, and she was not bound absolutely to know which door she was opening; it was a question for a jury to determine, in view of the degree of care which she testified to, and which was not disputed, whether she had exercised that reasonable degree of care which a reasonably prudent woman would or should have exercised under the same circumstances. She had prepared her supper by the firelight and such light as came in through the windows; she was getting ready for the boys to come home, and in doing this she was discharging her household duties. When she went into the hallway with her matches for the purpose of lighting the lamp in the toilet room, she was continuing these duties; a duty made necessary by the neglect of the landlord to perform a statutory duty, and it would'be difficult to suggest just what lack of care was manifest on her part — of that reasonable care which people usually manifest under such circumstances. Of course, she might have opened the door, struck a light and peered in, but that would be exercising a very high degree of care, and she was not hound to do this — reasonable care is the rule, and what constitutes reasonable care, where the evidence shows affirmatively any degree of care, is properly for the jury, not for the court. The case of Brugher v. Buchtenkirch (167 N. Y. 153), where the plaintiff, on a bright, clear day, entered a darkened hallway with which she was entirely unacquainted, walked back toward the end of the hall and fell down three steps leading to a lower floor, is clearly not controlling here. In that case the plaintiff gave no evidence of any degree of care; she simply walked in out of the bright sunshine into a dark hall and walked along, evidently assuming the hallway to he level, but taking no pains to know her surroundings. Here the plaintiff gives evidence that she was proceeding with caution/ and in order to sustain the judgment of nonsuit we must be able to say that she was hound to distinguish in the darkness between these two doors, the knobs of which were only a few inches apart, where one of the doors, and this the dangerous one, was found open. In the case now before us the plaintiff, after producing two witnesses to show that there were no lights furnished in the hall, offered to produce other witnesses to the same effect, and was met with the declaration of the court that it would, on the evidence as it then stood, dismiss the complaint, and while plaintiff’s counsel admitted that he had no further evidence upon the question of contributory negligence, I think the case 'presented, was: one1 which demanded- that the case-proceed.. -In the-case-of. Hilsenbeck v. Guhring (131 N. Y., 674),, where the plaintiff wa-s-a guest in, the house and. w-ernt, as ho supposed,, to the toilet room,, hut instead to- the- cellar stains, it was held that he was: guilty of contributory negligence,, hut. it was, upon, tiie-pro,position, that he- was, ignorant of the- situation, and that he proceeded without any effort to inform himself of the situation., And there he,could have taken one or two, steps after passing: through- the- door before, reaching the, cellar stairs, while ini the case at bar the-very first move inside of - the-door- appears to: have brought the plaintiff to-disaster. Of course, it is easy enough now to point out ho-w she might have avoided the accide’nt; but the question is,, under all the- circumstances as they appeared a-t the- time of the accident,, would a reasonably prudent person- have- acted a-s she- did ?. That she exercised some care in feeling her way along the hallway is certain- from the evidence-;- that she. had in- mind the situation, and that she- supposed she- had reached the- closet door, is. quite-apparent;: and because she made ani error in the darkness and sustained am injury, which was not to have-been apprehended had. the defendant furnished the light which: the-statute required, are we to say that she was not, entitled to the: judgment of. the jury upon the question of contributory negligence ? I thi-nik not;; I think, the: case presented evidence of care. Whether that was, the reasonable- degree of care: which, the- circumstances demanded was, not a question of law,, hut: of fact. Piper N. Y. C. & H. R. R. R., Co. (156 N. Y. 234) does not presentan analogous ease; the facts were' so-entirely different, asfo make the-reasoning in that, case- absolutely inapplicable to- the ease now before us.. The-cases relied. upon by the respondent are extreme, eases, of.'gross negligence,., and have: no relation to- a case where one- in the discharge of the.- ordinary routine- of daily life: meets with an accident. “The question, is,” as suggested by the court in. Parsons v. N. Y. C. & H. R. R. R. Co. (113 N. Y. 355), ‘ ‘ whether the injured party, under a-hof. the circumstances of the case,, exercised that degree-of care and caution- which prudent persons, of ordinary intelligence usually exercise under like circumstances; This rule must in all cases, except those marked by gross and inexcusable- negligence;, render the question, involved one of fact fbr the jury.,” Ini the case now under consideration there was no gross- or inexcusable negligence-; there was no going forward in utter ignorance of the situation and without care-, as in. the cases relied upon by the defendant, hut a deliberate going forward to perform one of the household duties, in the usual, way, with a. resulting accident: ■ The. case of Lather v. Bammann (122 App. Div. 13) is, clearly distinguishable. That was a close- case, two- of the five, justices sitting dissenting in- a. memorandum, and .the- decision seems, to, have hinged almost entirely upon the- fact that the plaintiff in- that action, going into, a hall which he knew Was dark, closed- the- dining room door behind Mm, thus shutting off all the light which might have been afforded, and which- the evidence indicated was sufficient to- have disclosed to the plaintiff the knob of the bathroom door,, which he was seeking... In the case now before- us the gas; had not been lighted, for the evening; the plaintiff went into the.hallway for the- purpose of placing a light in the.- toilet room, and it was while performing this duty, which under the statute belonged to the landlord, that she met with, this accident. In Kenney v. Rhinelander (28 App. Div. 246; affd., 163 N. Y. 576) and in Brown v. Wittner (43 App. Div. 135), the First Department held that it was nqt cqntrfbutory negligence, as a matter of law, for a ■plaintiff to use stairways and halls of a semi-public character in the absence of a light, even where they knew of defects in the carpets or mattings; :and a like doctrine was held by this court in Lee v. Ingraham (106 App. Div. 167), Mr. Justice Bartlett writing. It was conceded in the Lather Case (supra) -that the violation of the provisions of section 82 of the Tenement House Act (Laws of 1901, chap. 334) afforded evidence sufficient to justify a recovery; the case turned, as here, upon the question of contributory negligence, and great stress was laid upon the fact that when “he walked out of the dining room .lie knew that the hall ivas dark, yet he deliberately shut the door and excluded what light there wasfrom his apartment, knowing that,the door of the bathroom and the stairway were immediately adjoining.” “ The darkness of the hallway,” say the court, “which caused the accident, was thus brought about .by his own act in excluding the light from the diningroom, which would have enabled him to see the door1 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.” In the case at bar there was no affirmative act on the ¡Dart of the plaintiff to exclude .the light. On the contrary, she was in the very act of providing a light which would have the .effect of lessening the landlord’s liabilities, and having furnished evidence of some degree of care in going to this doorway in the dark, a question was .preseated for the jury, and the court erred in taking it from them. The Lather Case (supra), .as I have already suggested, was a close one, and the fact that the learned justices-disagreed upon the point would indicate that, under the ride which requires that where different inferences may ho drawn from the facis, it is for the jiury, the decision was one not to be followed beyond the.pecnliar facts of that case, while the .great weight of authority is in favor of submitting questions of this character to the jury under proper instructions. The physical facts in .connection with this accident are very similar, but the distinguishing acts .of the plaintiff are entirely lacking. It is true, of course, that the plaintiff might have lighted the gas in her dining room, and then opened the door into the hall-way, and that this would, perhaps, have afforded sufficient light so that :she might have .distinguished between the two doors; hut this relates to the degree of ■ care which she might have taken, and negligence is not based upon what we can see, after an accident has happened, might have been done to prevent it, but what reasonably minded people would have done under the same circumstances .at the time, and this is always a question for twelve men, duly chosen from the ordinary walks of life, rather than the court. The judgment appealed from should be reversed, with costs. Miller, J., concurred. 
      
      See Laws of 1901, chap. 334, § 82.— [Rep.
     