Schindler v. Welz & Zerweck — 145 A.D. 532

Majority

p. 532

Samuel Schindler, Appellant, v. Welz & Zerweck, a Corporation, Respondent.

Second Department,

June 16, 1911.

Headnote

Negligence — landlord and tenant — tenement Rouse — failure to provide lights — evidence—contributory negligence.

In order to recover for injuries alleged to have been caused by the negligence of the defendant, there must be proof of causal connection between the negligence and the injury. ' ' .

Failure of the owner of a tenement house to provide lights on the entrance ñoor and the second floor above as required by section 76 of the Tenement House Law is evidence of negligence.

Where, however, in an action by á tenant to recover for loss of his wife’s services due to injuries received in descending at night a stairway from the second floor of a tenement house to the entrance, there is no proof that permits of an inference that had the proper lights been burning the accident would not have occurred', and there is no claim made that the stairs were in any way defective, judgment for the defendant will be affirmed. '

Although it is not contributory negligence as a matter of law to .use a dark stairway without providing oneself with .a light, yet there must be proof that the use was with due care under the circumstances.

Where the wife came out óf her lighted apartment into the hallway in which the darkness was so dense that she could not seei the wall and

p. 533

attempted to descend á curving flight of stairs without providing herself with- a light as she could have done, and she testifies that she walked along the hallway as usual, but gives no evidence as to the manner in which she tried to descend the state, she fails to show such care as to justify a submission of the question of her contributory negligence to the jury.

Appeal by the plaintiff, Samuel Schindler, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant; rendered on the 7th day of November, 1910.

Solomon S. Schwartz, for the appellant.

Charles M. Davenport [Harry E. Lewis with him on the brief], for the respondent.

This'action is by a husband against his landlord, to recover for the loss’of services of plaintiff’s wife. ' The wife fell while descending a stairway that led from the entrance floor" to the second floor of the tenement house in which they lived and received the injuries alleged. The appellant is the plaintiff, who. was dismissed at the close of his case upon motion made upon the grounds that the plaintiff had failed to show absence of contributory negligence.or negligence of the defendant or to make out a case. The accident happened after ten o’clock p. M. There was proof that there were then no lights burning on either of the said floors. It is correctly contended that absence of such lights when in violation of section 76 of the Tenement House Law is evidence of negligence. [Lather v. Bammann, 122 App. Div. 13 ; Jones v. Ryan, 125 id. 282.) The absence of a propei light burning on the entrance floor from sunset' to sunrise is such a violation, but the absence of such a light upon the first floor above the entrance floor is not, for the statute requires such a light from sunset to sunrise only upon the entrance floor and the second floor above the entrance floor.

To cast liability, there must be proof of causal connection between the negligence and the injury. While it is true that the statute required a proper light in the entrance hall “near the stairs,” it did not follow that the wife’s fall was in any

p. 534

way assignable to the absence of such a light. There is no.proof that permits even an inference that such light would have shown the way upon these stairs, which were “curving,” and the proof merely is that the wife fell after descending two or three of the steps. There is no. suggestion that there was any defect in the stairs or in the condition of the stairway or of any of its belongings.

Moreover, the plaintiff failed to prove such care upon the part' of his wife as justified a submission of the question of contributory negligence to the jury. The wife attempted to descend in order to meet an expressman. She had lived in her apartment for some months. There was a'light in it at this time. It is clear enough that she had the means of furnishing herself with light .by a candle and, for aught that appears, she could have lighted the gas jet in her hallway. But she chose to venture out into that hallway where the darkness was so dense that she could not see the wall, and to seek the stairs ih that darkness. Her evidence is that she walked along, the hallway, “ usually the way I am going ⅜ ⅜ ⅜ slow, my usual way of going, not running.” Although it is not contributory negligence as matter of law (Kenney v. Rhinelander, 28 App. Div. 246 ; affd., 163 N. Y. 576 ; Lee v. Ingraham, 106 App. Div. 167 ) to use a stairway without first providing oneself with a light, yet there must be proof that such use was with due care under the circumstances. The nature, thereof is expressed in Kenney v. Rhinelander (supra) as .“great care.” But there is no evidence whatever as to the manner in which the wife essayed to descend. (See Baumler v. Wilm, 136 App. Div. 858 .)

The judgment must be affirmed, with costs.

Present — Jenks,P. J., Burr, Carr, Woodward and Rich, JJ.

Judgment of' the Municipal Court unanimously affirmed, with costs.

Cases cited

Sullivan v. Eusner 163 N. Y. 576 N.Y. 1900-06-05 p. 534