Opinion
December, 1918.
Bogart, Wilkes Bogart (Harry Schulman and Abraham P. Wilkes, of counsel), for appellant.
Almond D. Fisk, for respondent.
Plaintiff, a tenant in a tenement house, at about seven P.M. in the evening of October seventh, left her apartment, two flights above the ground floor, on her way to attend religious services. When she stepped into the hallway it was so dark she had to "grope" her way to the head of the stairs, guiding her footsteps by placing her hand on the balustrade. Reaching the stairs she proceeded downward, slowly, touching the balustrade at short intervals. When she had got down some steps she remembered that there was at that portion of the stairs "a wider step." She felt with her foot to ascertain if the next step was the wider step, and in so doing she let go her hold of the balustrade. When she planted her foot upon the step it caught in a "rag" which in some manner had been left on the step. She tripped, made a futile grasp for the balustrade, and was unable by reason of the darkness to locate the balustrade, and seize it, and fell and was injured. There was no light burning on the entrance floor or on the second floor above it, the floor on which plaintiff lived. As the complaint was dismissed, the foregoing is the most favorable statement of the plaintiff's story.
The question before us is, did plaintiff by this testimony make out a prima facie case? The Tenement House Law, section 76, provides that "a proper light shall be kept burning by the owner in the public hallways, near the stairs, upon the entrance floor, and upon the second floor, above the entrance floor * * * every night from sunset to sunrise throughout the year." One of plaintiff's witnesses testified that the lights had been lighted at or about sunset; and the respondent contends upon this proof that his full duty was performed under the statute. Not only does the statute in express terms state the contrary, but in Silverman v. Konig, 170 N.Y.S. 368, we construed an ordinance providing that certain cellarways "shall be inclosed * * * with two iron chains * * * to be closed during the night," etc., as placing upon the person in control the duty of keeping the chains closed, although the ordinance did not in terms so require.
The respondent urges also that the darkness was not the proximate cause of the accident. We deem it to be very plain that it was an efficient concurring cause. Sweet v. Perkins, 196 N.Y. 482. The case of Maringer v. Hill, 146 A.D. 720, is not an authority to the contrary. Horn v. Breakstone, 75 Misc. 343, a City Court trial term decision, was rested upon the authority of Davy v. Lyons, 71 id. 139, a peculiar case, where it may have been difficult to see how the absence of light contributed to the accident. If, however, the majority opinion in the Davy case be deemed to support the respondent's contention here, we are unable to follow it.
GUY and WEEKS, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.