
    Leonhardt Hilsenbeck, App’lt, v. John M. Guhring, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 13, 1891.)
    
    Negligence—Owner op building.
    Plaintiff, while visiting his son-in-law, who resided, in the upper part of defendant’s premises, descended to use the common water closet, which was in a dark hall, and, opening the wrong door, fell into the cellar and was injured. There were three doors close together, opening, respectively, into the defendant’s saloon, the cellar stairs and the water closet, the key to the cellar being kept by defendant. There was a gas fixture in the hall, but it was riot lighted. Held, that it was defendant’s duty to observe care and attention in managing this part of the building, so as to avoid needless exposure of his tenants or their lawful visitors to the risk of accidents; that the questions of negligence and contributory negligence were for the jury to determine, and that it was error to dismiss thé complaint.
    Appeal from a judgment recovered on the dismissal of the complaint at the circuit, and from an order denying a motion for a new trial.
    
      Alfred & tedder, for app’lt; William J. Gaynor, for resp’t.
   Daniels, J.

The action was brought against the defendant as the owner and possessor of premises situated in the city Brooklyn and known as No.. 206 Calyer street, to recover damages for an injury sustained by the plaintiff on or about the 6th day of January, 1889. The building was in part occupied by the defendant as a restaurant and dwelling, and by other persons as tenants, to whom the defendant leased portions of it. On the upper floor the son-in-law of the plaintiff resided, whose family was visited by him on the day of the accident. This occurred about five o’clock in the afternoon. The plaintiff descended from the apartments occupied by his son-in-law to the first floor of the building to make use of the water closet, which was there maintained for the convenience of the occupants of the building. The stairs terminated in a hall, in which the water closet was located. The hall at the time was dark, receiving no other light than came from a window over the street door. And as the day was dark, this was insufficient to clear the darkness from the hall. There were three doors in the hall, one leading into the saloon, the next to the basement, and the third to the water closet. The evidence of the plaintiff is that he found the second door slightly open, and supposing that to be the door of the water closet passed through it and fell down the stairs into the basement below, and thereby sustained a fracture of his leg.

A gas jet was maintained in the hall, but it was not at the time lighted. And the evidence tended to establish the fact that the basement was used as a depository for wood and coal and other things for the use of the occupants of the building; that the defendant had in the saloon a key to the door through which the plaintiff passed when he fell into the basement, and that this door was at times locked and at others left unlocked. But the defendant, and the person in his employment in the saloon, were the individuals- who appear to have had the control and management of the door in the way of locking and unlocking it

Prior to the occurrence of this' accident the witness Scheffler, who was the plaintiff’s son-in-law, testified that he went to the water-closet at one time in the night and missed the door and caught the other door; and that he afterward informed the defendant that this door was open, and that he had tumbled himself on the top of an ash barrel that was standing on the platform, and that the defendant replied that his bar-tender had forgot to lock the door. This was about four or five weeks prior to the accident

From the fact that the plaintiff was visiting the family of his sondn-law it is to be presumed that he was lawfully in the building on this occasion, and that he had the right to use the water-closet as that was intended by him when he descended from the apartments he had been visiting. And from the position in which the water-closet was located, and its devotion to the uses and conveniences of the occupants of the building, it is also equally to be presumed that the hall, including this part of the building, was in the possession and control .of the defendant as distinguished from the tenants. It was accordingly his duty to observe care and attention in managing this part of the building so as to avoid the needless exposure of the tenants themselves, or of their lawful visitors, to the risk of accidents by passing through the unsecured door to the basement, instead of into the water-closet as that might at the time be designed. And the observance of that care when the hall was dark was no more than a reasonable or proper precaution on his part. This would no doubt have been satisfied either by the locking of the door leading to the basement or the lighting of the gas jet in the hall, which would have enabled persons to discover the location of the water-closet and avoid the mistake of passing, instead of that, through the door into the basement. The case was one which under the evidence raised a question of fact whether the defendant had observed that degree of care which the circumstances exhibited the propriety of observing for the protection or security of persons lawfully making use of this part of his building.

In this respecfthe case does not in principle differ from the rule which was applied for the disposition of Camp v. Wood, 76 N. Y., 92. There an attendant at a ball passed in the night time through a door opening upon a wooden platform built out from the second floor of the building. This was unguarded by any railing, or otherwise, and the plaintiff, supposing himSelf to be upon the street side, fell and was injured. And it was held by the court that there was that degree of omission to observe care on the part of the defendant as to justify the submission of the case to the jury. In Tousey v. Roberts, 114 N. Y., 312; 23 N. Y. State Rep., 223, an elevator door had been left open, through which the plaintiff passed, supposing the elevator at the time to be there; but; it was not there, and he fell and received a serious injury. And the court concluded this to be a case for the jury. And the same principle was applied to McRickard v. Flint, 114 N. Y., 222, 229; 23 N. Y. State Rep., 100, where in the daytime the party stepped into an elevator shaft through a partly opened door. The cases of Harris v. Perry, 89 N. Y., 308; Edwards v. N. Y., etc., R. R. Co., 98 id., 245, and Wolf v. Kilpatrick, 101 id., 146, materially differ from those just referred to, as well as from the present case, in their controlling facts. And no intimation is contained in either which will relieve the defendant from the obligation to ob-. serve that degree of care in the management of this part of his building which has already been mentioned. It is true, as was said in Wasson v. Pettit, 26 N. Y. State Rep., 919, that the defendant can only be held liable on the ground of negligence establishing the fact that he was guilty of some act of omission from which fault on his part could be reasonably inferred. But the evidence presented a case in which the jury might deduce this inference, and it was for them to consider and determine whether that conclusion should be adopted under the evidence given upon the trial.

Whether the plaintiff himself was negligent in passing through the hall and into the way leading to the basement was also, under the authorities to which reference has been made, a question for the jury to consider and determine. And the case of Gaffney v. Brown, 150 Mass., 479, does not justify the exclusion of that question from the jury. There the plaintiff in the day time passed into an open door leading from the dining-hall into a basement, and could easily, by the use of her powers of observation, have detected he! mistake in opening this door for the door leading from the dining-room.

The case of Wilkinson v. Fairrie, 1 Hurlstone & Coltman, 633, is very directly in point. There the plaintiff was passing through a dark hall and encountered a personal injury, but the court held him unable to maintain an action for damages for the want of care on his part. And if that were the only authority to be considered and followed, then the dismissal of the plaintiff’s complaint would necessarily be justified. But the principle applied in Camp v. Wood, Tousey v. Roberts, McRickard v. Flint, supra, is by no means so harsh or severe upon the person lawfully using the premises of another and sustaining an injury in this manner. Under the authority of these cases it was for thé jury to consider and decide whether the plaintiff was so far chargeable with negligence in endeavoring to reach the closet at the time through the darkened hallway as to prevent him from maintaining an action for the recovery of damages. Upon both branches of the case it was one for the jury, and the judgment, as well as the order, should be reversed, and a new trial directed, with costs to the plaintiff to abide the event of the action.

Van Brunt, P. J,., and Brady, J., concur.  