
    Emily Brugher, Appellant, v. Herman Buchtenkirch, Respondent.
    
      Negligence — injuries sustained in the hallway of a tenement building — proof that it was customary to shut off the gas from, a burner therein during the daytime is competent.
    
    "Where, in an action brought by a person who fell and was injured in the hallway of a tenement building, to recover damages from the landlord, the case turns upon the question whether a gas jet in the hallway was lighted at the time the accident happened, which was about noon, evidence that it was the custom to shut off the gas from this burner during the daytime is competent.
    Van Brunt, P. J., and Ingraham, J., dissented.
    Appeal by the plaintiff, Emily Brugher, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 26th day of October, 1898, ujion the dismissal of the complaint, by direction of the court, after a trial at the New York Trial Term.
    
      Edwin B. Root, for the appellant.
    
      Edward W. S. Johnston, for the respondent.
   Patterson, J.:

This action was brought to recover damages for personal injuries sustained by the plaintiff in a hallway of a tenement house belonging to the defendant in the city of New York. She went upon the premises to see a tenant with whom she had some business to transact. That tenant resided in the upper part of the house, but the plaintiff was not aware of that fact. On arriving at the house she rang the bell, the door was opened by some appliance from above and she found herself in the hallway, which she describes as being dark. She walked carefully along the hall until she reached a point some nineteen feet from the entrance. While walking, as she says, ■carefully along with her hand upon the wall, she came to some stejis which extended across the hall, which steps she could not see and of the existence of which she did not know, and she fell and was injured. It was shown that there were apartments in the rear of the building on the first floor, and it would seem that the plaintiff was going to one of the rear apartments to ascertain in what part of the house the person she wished to see lived. It may be assumed for all the purposes of this case that the plaintiff was upon the premises by an implied invitation of the landlord and that she exercised ■due care in moving along the hallway. The complaint was dismissed at the close of the evidence on both sides and upon the ground that the whole evidence showed that the defendant had not failed in any duty he owed to those who came upon the premises by ■an express or implied invitation from him.

On a former appeal in this action from a judgment dismissing the •complaint, the rule of law applicable was stated (29 App. Div. 342). The cardinal point upon which the case then turned and now turns is the darkness of the hallway, the appellant conceding on the record that unsafety resulted only from darkness. It was stated in the ■opinion on the former appeal that, as a general rule, a landlord is not required to furnish artificial light in a hallway of a tenement; but it was also held that where there is an unusual construction of a hallway, rendering it unsafe without artificial light, and by reason of "the want of such light a visitor looking for a tenant falls and is injured in the hallway, a question is presented for the jury whether the landlord has exercised that reasonable care for the safety of those lawfully upon the premises which it is his duty to exercise. It was also held that proof might be given in this case “ to support "the plaintiff’s theory, that by reason of the unsafe construction of ■stairs across the hall, it was incumbent upon the defendant, in the exercise of reasonable care in rendering the place reasonably safe, to supply artificial light. If such proof had been given, there would have been sufficient to go to the jury upon the question of the ■defendant’s negligence.” Upon the trial now under review, the plaintiff gave evidence which made out a prima facie case within the requirement of the decision on the former appeal. The plaintiff testified that the place was dark; that there ivas no artificial light* that no natural light came through from the front entrance, and. that in the rear there ivas a little light coming through transoms, but not sufficient to penetrate as far as the obscured stairs down which she fell. The defendant, on the other hand, introduced evidence tending to show that he had done everything that reasonably could be required of him to make the place safe. When he became the purchaser of the property, he had a gas fixture put in immediately by the stairs and gave instructions to the janitor or person in charge of the building to have the gas lighted at that. burner from an early hour in the morning until half-past ten at night. The duty that devolved upon the landlord was not only to supply the means of lighting the hall .at the point where the accident occurred, but to do everything reasonable to maintain that light. The evidence on his behalf is clear that, as a general custom, the gas was kept burning at the point inferred to during-the daytime, and that on the very morning on which this accident occurred the gas was burning at ten o’clock (the accident occurring-at noon or a little after), and that it was also burning at half-past-twelve o’clock, and there was also evidence to show that the gas was lighted there every day. The landlord, therefore, showed without contradiction not only that he had provided the means of lighting the hall, but that it was customary to have that light burning, and that it was burning on the very morning on which the accident-happened. But this condition of the evidence resulted from the-exclusion by the trial judge of an inquiry which, had it been pursued, might have produced a very material modification of the case. If the duty to maintain the light was not performed through the-remissness of the defendant’s employees, or for any other reason for which he would be chargeable, it would certainly be proper to allow •proof thereof to go to the jury. The plaintiff did offer evidence of that character. The witness Steinmetz was asked : Q. Was there any custom in the house about the time of this accident, and for-several years before the accident, in regard to the time of lighting-this light near the stairs in the rear of the hall ? ” That was excluded under objection and exception. Q. Do you know whether, during the daytime, the gas which fed that light was cut off in the cellar? A. It was. The court: Strike out the answer. Q. "Was it or was it not ? The court: The answer may be recorded that she answered ‘Yes, she knows.’ Q. Was it or was it not so cut off?” That was excluded under objection and exception. The witness then said in answer to the court: “ I do not know whether it was not cut off on Thanksgiving day,” by which she says she meant “ I don’t know from having seen it cut off on Thanksgiving day. Q. But do you know what the custom was in regard to cutting it off ? ” That was excluded under objection and an exception was taken.

Thus there was excluded from the case evidence which was offered by the plaintiff to show that it was the custom to cut off the gas from this burner during the daytime. That proof was to be opposed to that which the defendant might offer and did offer upon the subject of his performance of his whole duty in maintaining the light, which was as much required of him as the mere furnishing of an appliance for lighting. The question asked went directly to the establishment of negligence on the part of the defendant, namely, to show that it was a usual thing to extinguish the light in this hall by cutting off the supply of gas from the cellar.

For the exclusion of this evidence the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

O’Brien and McLaughlin, JJ., concurred; Van Brunt, P. J., and Ingraham, J., dissented.

Ingraham, J. (dissenting):

I dissent. It appeared without contradiction that the defendant furnished a light, which was burning just before and just after the accident, and he was not responsible for the light being extinguished at the moment of the happening of the accident.

Judgment reversed, new trial ordered, costs to appellant to abide event.  