
    Louisa Jucht, App’lt, v. Dorothea Behrens, Resp’t.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed October 28, 1889).
    
    Landlobd and Tenant — Negligence.
    Plaintiff, after delivering her washing to one of defendant’s tenants, fell down the cellar stairs, the cellar door having been left open by some one, and the hall being dark. There was no peculiar construction in the hall or stairway, and the tenant had agreed, at defendant's request, to keep the hall lighted. Held that, in the absence of proof that the defendant or her servants left the door open, plaintiff could not recover. •
    Appeal from judgment entered on dismissal of the complaint.
    
      M. L. Towns, for app’lt; Jerry A. Wernberg, for resp’t.
   Osborne, J.

Plaintiff brought this action to recover damages for injuries sustained by her in falling .down the cellar stairs of a tenement house owned by defendant, which injuries she claims were caused by the negligence of the defendant in permitting the hallways of said house to be unlighted and dark and unsafe, and the opening or doorway from the hallway to the cellar to be open and unguarded.

It appears from the evidence that the premises in question consisted of a three-story double house containing six families. The stairway was built in the recess of the hall, and the door leading* to the cellar was under the stair. All the tenants had the right of access to the cellar, and there kept their fuel.

On the evening of April 20, 1888, between 6 and 7 o’clock, plaintiff went to the apartments of one Mrs. "Weisberger, on the first floor, to deliver, her washing. She started to leave between 7 and 8 o’clock, went out into the hall, which was dark and an-lighted, took a couple of steps, she testifies, and, the door leading to the cellar being open, fell down the cellar stairs and suffered the injuries of which she complains.

Mrs. Weisberger testifies that she furnished a lamp for the hall at defendant’s request, and was to keep it lighted at her request.

The complaint was dismissed at the trial on the ground that no negligence was shown on the part of the defendant, and from the judgment entered thereon this appeal is taken.

The only question left for us to consider on this appeal is whether tlie defendant was shown to be negligent in any duty that she owed the plaintiff. We can find no evidence in this case that defendant was negligent. There is no proof that the construction of the hallways and the cellar stair was in any respect faulty or different from the ordinary plan of tenement houses. The accident was occasioned by some one leaving the cellar door open. H that had been closed the accident would not have happened. That some one was negligent in leaving the cellar door open is doubtless true, but it nowhere appears that the defendant or her servants left the door open.

We cannot say that it was the duty of the owner to light the halls of the premises; the fact that the hall was dark entailed on the plaintiff the duty of moving carefully, and if she had done so, or asked for a light, she would have discovered the open door, and so have avoided the accident that befell her; to say that, because someone (presumably one of the tenants) carelessly left the cellar door open, it constituted negligence on the part of the defendant, is a proposition that cannot be entertained.

The case of Camp v. Wood, 76 N. Y., 93, relied on by appellant’s counsel, is not in point; in that case the court substantially held that it was the duty of the landlord to provide safe 'arrangements for the entrance and departure of those invited to his premises; there, however, it will be noted, the construction of the stairway and the exit therefrom was peculiar and calculated to mislead. In the case at bar there was no faulty or peculiar construction shown to exist; the cellar stairway was properly guarded by a door, and no negligence was shown .on the part of the defendant. Kaiser v. Hirth, 36 Supr. (4 J. & S.), 344.

For the reasons stated, we think that the learned trial judge was right in dismissing the complaint.

Judgment affirmed, with costs.

Van Wyck, J., concurs.  