
    Mary E. Atkinson, as Administratrix, etc., App'lt, v. Meyer Abraham, Resp't.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 1, 1887.)
    
    1. Landlord and tenant—Breach op duty by landlord resulting in damages—Cause op action.
    As between the landlord and tenant it is a general rule that when a landlord owes a duty either by his own agreement, or imposed by statute, a breach of such duty causing damage gives a cause of action.
    
      2. Same—When landlord neglects his duty.
    The deceased hired of the defendant the sixth story of certain prem- “ ises in New York city There was a hatchway extending from the bottom to the sixth story. It was the duty of the owner to provide and protect the hatchway by substantial railing and sufficient trap door This hatchway had once been protected, but the bars to protect the opening had not been in place during the occupancy of deceased, defendant refusing to supply them, saying that they had been taken away and he could not afford to replace them. Held, That under the state of the proof there was a neglect of duty by the defendant.
    3. Same—Tenant must use ordinary prudence
    The deceased fell through the hatchway and was killed Held, That deceased was bound to exercise the care which a prudent man would, under the circumstances. That as a matter of law he was not bound to get a light although the hatchway was near the stairs.
    4 Same—Where degree op care question por jury.
    When the injury is from a defect known to the injured person, the degree of care and caution required of him is a question for the jury.
    Motion for a new trial directed to be heard in the first instance at the general term, the trial justice having granted a motion for a non-suit at the close of plaintiff’s case.
    
      Hastings & Southworth, for app’lt; Morris & Pearsall, for resp’t.
   Barnard, P. J.

As between landlord and tenant, it is general rule that when a landlord owes a duty, either by his own agreement or imposed by statute, a breach of such duty causing damage gives a cause of action. Willy v. Mulledy, 73 N. Y., 310.

The proof shows that the deceased hired of the defendant the sixth story of certain premises in the city of Hew York. There was a hatchway extending from the bottom to the sixth story. It was the duty of the owner to provide and protect this hatchway by substantial railing and sufficient trap door. Chap. 625, Laws of 1871, ch. 547, Taws of 1874, ch. 410, Laws of 1882.

The hatchway had once been protected, or at least uprights had been constructed in which to put the bars to protect the opening. They had not been in place during the occupancy of deceased. He asked that they be put in, and the defendant did not do it, saying that they had been taken away, and he could not afford to replace them. Under this state of the proof, there was a neglect of duty by the owner.

The case shows that evidence was given tending to show that the deceased fell through the hatchway December 13, 1883, and was killed. The case should have gone to the jury, unless there was a failure to show a freedom from contributory negligence. It was possible to go down the stairs without falling into this hatchway. It was three feet nine inches from the foot of the stairs. The hatchway was habitually left open, and at about the time of the accident was being used by the deceased’s employees.

It was dark when the deceased went down, and he fell through the open well hole. The case should have gone to the jury upon the question of the contributory negligence of the deceased.

There is a certain assumption in favor of caution in the presence of known danger. The deceased must go up and down, even if the hole was unprotected. He was not bound to get a light as matter of law. He was bound to exercise the care which a prudent person would exercise under the circumstances of the case. All these things were for the jury.

An accidental stumble, a moment of bewilderment, a misjudgment as to the foot of the stairs, might occasion the accident to a prudent person. The case of Totten v. Phipps, 52 N. Y., 354, which closely resembles this one, was held to be a case for a jury. When the injury is from a defect known to the injured person, the degree of care and caution required of him is a question for the jury. Bassett v. Fish, 75 N. Y., 304; Palmer v. Bearing, 93 id., 7.

The exception should be sustained and a new trial granted, with costs to abide event.

Dykman, J., concurs; Pratt, J., dissenting.  