
    William E. Brown, Appellant, v. Joseph Wittner, Respondent.
    
      New York city—liability of a landlord to a tenant falling down unlighted stairs— assumption, of a risk created by the absence of a banister.
    
    tn an action brought against the owner of a tenement house in the city of New York to recover damages for injuries resulting from a fall, sustained by the plaintiff, a tenant, while he was descending, after sunset and before ten o’clock in the evening, a staircase leading from the second story to the ground floor of the house, which was not furnished with banisters or a handrail, proof that the gas fixture with which the hallway was provided and the light from which, when burning, was shed upon the staircase, was not lighted at the time of the accident, in violation of the statute (Laws of 1895, chap. 567, § 9) requiring “the owner or lessee of every tenement or lodging house in the city of New York to keep a light burning in the hallway upon each floor of said house from sunset until ten p. m. throughout the year,” and that, in consequence of the darkness, the plaintiff, who was carrying articles in one hand and supporting himself against one of the walls of the staircase with the other, made a misstep, slipped and fell, requires that the question of the defendant’s negligence be submitted to the jury.
    Where it appears that the plaintiff lived upon one of the upper, stories and was on his way to the street at the time of the accident, the fact that he used the stairway in the darkness does not show that, as a matter of law, he was guilty of contributory negligence.
    
      Semble, that if the failure of the defendant to provide the stairway with a banister or handrail, as required by statute, were the only cause of the accident, the action would not he maintainable, as the plaintiff, having remained upon the premises for several years knowing the condition of the stairway, must be considered to have assumed the risk incident thereto.
    Appeal by the plaintiff, William E. Brown, 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 9th day of December, 1898, upon the dismissal of the complaint by direction of the court, after a trial before the court and a jury at the New York Trial Term.
    
      Roger S. Baldwin, for the appellant.
    
      Alexander Rosenthal, for the respondent.
   Patterson, J.:

The complaint in this action was dismissed at the trial “ on the ground that the plaintiff had not made out a cause of action.” The plaintiff was a tenant and occupant of rooms or an apartment on one of the upper floors of a tenement house, belonging to the defendant. On the 2d of December, 1896, after sunset and before, ten o’clock at night, he descended the 'staircase, and while on the flight leading from the second. story to the lower floor of the house, he missed his footing and fell, and sustained injuries in consequence. This stairway was not furnished with a banister or handrail and there was no light in the hallway, although a gas fixture was provided, the light from which when burning was shed upon the stairway. At the time the accident to the plaintiff occurred-, the statute (Laws of 1895, chap. 567, § 9, amdg. Laws of 1882, chap. 410, § 663) required that “ the owner or lessee of every tenement or lodging house in the city of New York shall keep a light burning in the hallway upon each floor of said house from sunset until ten p. m. throughout the year.” There- was another statute (Laws of 1867, chap. 908, § 4) then in force which required that “ all stall’s shall be provided with proper banisters or railings and shall be kept in good repair.” The plaintiff’s right of action is founded upon allegations of the violations of both of those' requirements of law.' So far as the, failure to furnish a banister or handrail to the stairs is concerned, it may well be that the action would not be sustainable if that were the only cause to which the accident could be attributed, for ( the plaintiff had been a tenant in the house for several years and he well knew the condition of the stairs, for he had ascended and descended them, according to his own statement, hundreds of times. Being satisfied to remain in and upon the premises and use them for so many years in the condition in which they were, it may well be assumed that he was willing to take the risk of that condition. But with respect to the absence of a light at the time the accident •occurred and the negligence of the defendant or his servant in charge of the house in failing to have the light burning on that occasion,- an entirely different question-arises. There was a violation of the statute proven. .The defendant’s janitress testifies that the light in the hallway near this staircase was not burning at the time of the accident, but that she was then on her way to light it. The evidence of the ' plaintiff and of another witness is that it was very dark on the stairway. There was neglect to comply with the statute. The gas was not burning during all the time required by that statute, and if the injury happened to the plaintiff in consequence of the want of that' light the violation of the statutory duty gave the right of action to-the injured party. (Pauley v. Steam Gauge & L. Co., 131 N. Y. 90; Knisley v. Pratt, 148 id. 372; Pitcher v. Lennon, 12 App. Div. 356; Hanrahan v. Cochran, Id. 91.). There was evidence from which the jury could have inferred that the violation of the-statute, in the neglect to furnish light, was the cause of the accident. The plaintiff’s statement is that, as he was descending the stairs, with, small fish kettles in one hand, supporting himself by the other hand against one of the walls of the stairway, he missed his footing, slipped and fell. The whole tenor of the evidence is'that in consequence of the darkness the plaintiff made the misstep, and we must, take the inference most favorable to the plaintiff that can legitimately be drawn from the testimony. There was enough, therefore to go to the jury on the question of the defendant’s negligence. It could not be adjudged as matter of law that the plaintiff was guilty of contributory negligence. That the plaintiff used the stairway in darkness does not in and of itself convict him of contributory negligence. (Kenney v. Rhinelander, 28 App. Div. 246; Totten v. Phipps, 52 N. Y. 354.) He lived upon one of the upper floors; this stairway led from the ground floor to the second floor, and lie was on his way to the street. Whether he was guilty of contributory negligence was a matter for the jury to determine upon all the facts and circumstances of the case.

A cause of action was proven, and the judgment appealed from should be reversed, with costs to abide the event.

Van Brunt. P. J., Barrett, Ingraham and McLaughlin, JJ., concurred.

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