Opinion
February, 1920.
Max Gross, for appellant.
Nadal, Jones Mowton (Harry J. Laragh, of counsel), for respondent.
Plaintiff sued for injuries received while a tenant in defendant's tenement house. On the 1st of February, 1919, after sunset, she endeavored to leave her apartment and found the hallway of her floor and the stairway leading therefrom in total darkness. She approached the stairway carefully, and in reaching for the balustrade missed her step and fell down the stairway causing injuries for which she sues. The respondent endeavors to sustain the judgment upon the theory that, conceding defendant's liability for violation of section 76 of the Tenement House Law requiring the hallway and stairs to be kept illumined by burning lights, plaintiff was guilty of contributory negligence as matter of law because she continued her endeavor to leave her apartment notwithstanding the darkness and without procuring a light. In support of this proposition, defendant cites, among others, the cases of Piper v. New York Central H.R.R.R. Co., 156 N.Y. 224 (which of course was not concerned with a tenement house), Brugher v. Buchtenkirch, 167 id. 153 (in which the opinion particularly described the building as "not subject to the Tenement House Law"), and Rohrbacher v. Gillig, 203 id. 413 (in which the building in which the accident occurred is described as a business building; moreover, in the last two cases it was not a tenant that was injured). The principal case cited by respondent which appears to support its contention is Lather v. Bammann, 122 A.D. 13, in which the decision was concurred in by three of the five justices. In that case (as in Baumler v. Wilm, 136 A.D. 857), there were peculiar circumstances which may explain the result arrived at. The tenant was not endeavoring to leave his apartment, but was merely seeking to place a light in his bathroom on that floor, and in the course of that attempt closed the door of the apartment in which there was ample light to illumine the hallway and thus plunged it into total darkness. Although the respondent says in his brief that the plaintiff, Lather, appealed to the Court of Appeals where his appeal was dismissed, he gives no citation to justify that statement and I can find none. In the Baumler case there was another and safe stairway open to the plaintiff. Whatever may be the merits of the decisions there arrived at upon the question here presented there can be no doubt of the significance of the recent cases of Schindler v. Welz Zerweck, 145 A.D. 532, 534 (a case cited by respondent), and notably of Bronstein v. Faden, 149 id. 37; affd., 208 N.Y. 605. These cases have restored the validity of the principle adopted in Kenney v. Rhinelander, 28 A.D. 246; affd., 163 N.Y. 576, and Lee v. Ingraham, 106 A.D. 167, which hold that the mere fact that a tenant persists in using the halls and stairways of a tenement or apartment house while they are in darkness does not as matter of law charge him with contributory negligence, but that if he exercises adequate care notwithstanding the darkness he may show himself to be free from contributory negligence as matter of fact. It is difficult to escape the conclusion that such ruling is inevitable in face of the requirement of the Tenement House Law that the landlord shall keep the halls and stairways adequately lighted. Any other holding would virtually repeal or amend the law by placing the burden of keeping the halls and stairways lighted not upon the landlord, as it explicitly does, but upon the tenant for whose benefit the requirement has been enacted. If a tenant must at his peril use the dark hall and stairways which the landlord maintains in violation of the positive enactment to the contrary, it is quite plain that the duty is shifted from the shoulders of the landlord, where the law has placed it, to those of the tenant.
GUY and WAGNER, JJ., concur.
Judgment reversed, and new trial granted, with thirty dollars costs to appellant to abide event.