Ziegler v. Brennan

The plaintiff’s intestate, Joseph Ziegler, sustained fatal injuries by falling on a staircase in a house owned by the defendant in the borough of Manhattan, in the city of New York. It was a tenement house with four floors, including the ground floor. There were two apartments on each floor, with the exception of the first. The decedent and his family occupied one of the apartments on the third floor. The entrance to the apartments above the first story was from a front door opening into a hall. There was a fanlight over the front door, and a window at the rear of the hall. The stairway giving access to the upper apartments was at the left of the main hall, and beginning at a point about n feet from the front door. This •staircase consisted of three steps rising from the floor of the hall, ■turning towards the rear, and from the third step the staircase was constructed in a straight flight up to the floor of the second story.

On the subject of the condition of the staircase the evidence was conflicting. There was proof tending to show that the decedent’s foot caught in a broken india-rubber covering on the fourth step. The decedent’s widow testified that, upon her hearing the noise and going down the stairs, she found that a slipper worn by the intestate at the time the accident occurred was caught in the broken india-rub-ber covering, and that it was fixed there in a horizontal position. There was also evidence tending to show that the stairs had been out of repair for some months prior to the accident, and that the attention of the owner, or those in charge of the house for him, had been called thereto. All this evidence, however, was contradicted, and an issue was presented for the consideration of the jury, with the evidence in such a state that they might have found for the defendant on this issue, and still have found against him on the remaining issue, which invoked the condition of the hallway as to a sufficiency of light for those lawfully using that hallway.

The tenement house act, which became a law April 12, 1901, provides in section 80 that:

“In every now existing tenement house four stories or over in height, whenever a public hall on any floor is not light enough in the daytime to permit a person to read In every part thereof. without the aid of artificial light, the wooden panels in the doors located at the ends of the public halls and opening into rooms shall be removed, and ground glass or wire glass panels of an aggregate area of not less than four square feet for each door •shall be substituted; or in lieu of removing the panels in the doors a fixed sash window of wire glass of an area of not less than five square feet may be cut into the partitions separating the said hall from a room which opens directly upon the street or upon a yard, court, or shaft of the dimensions specified in the last section; or said public hall may be lighted by a window ■or windows at the end thereof with the plane of the window at right angles to the axis of the said hall, said window opening upon the street or upon a yard, court, or shaft of said dimensions.”

But by section 164 of the same act an owner is allowed one year, •or such other time as may be fixed by designated' authority, to make the alterations required by the act.

By section 1320 of chapter 378 of the Laws of 1897 it is provided that the owner or lessee of—

“Every tenement house in the said city, in which there is a hallway or hallways with no windows opening from such hallway outside of said house, a light shall he maintained by said owner or lessee in each such hallway, between the hours of eight a. m. and ten p. m. of each day unless said hallway shall be otherwise sufficiently lighted.

It is a matter of grave doubt whether the provisions of the tenement house act apply to the premises in which this accident occurred. The inference to be drawn from the testimony is that the construction of the hall on the day the accident occurred was the same as had existed long previous to that day, and if the defendant had a year, or such other time as might be designated by proper authority, within which to make the alterations required by the eightieth section of the tenement house act, he could not well be charged with neglect under that act in failing to make required changes within less than a month after that act went into effect. But be that as it may, and assuming that the defendant had failed to comply with some provision of statutory law, the trial justice sent the cause to the jury upon the issue of noncompliance with statutory provisions, under instructions which compelled them to find that negligence of the defendant was conclusively established. The importance of this instruction becomes manifest when we consider that upon the issue of the unsafe condition of the staircase, by reason of its being out of repair, the jury, on the conflicting evidence, might have found for the defendant, while upon the issue relating to noncompliance with the statute they were expressly instructed that such noncompliance constituted negligence; the court meaning, of course, negligence with respect to the concrete case. The court was asked by the plaintiff to charge, and did charge, that any one not complying with the statute is considered as doing so with knowledge of the law, and is negligent; and, in support of the argument that that instruction was correct, we are referred to certain cases-in this court, namely, Pitcher v. Lennon, 12 App. Div. 359 , 42 N. Y. Supp. 156 ; Brown v. Wittner, 43 App. Div. 135 , 59 N. Y. Supp. 385 Lendle v. Robinson, 53 App. Div. 140 , 65 N. Y. Supp. 894 . But those cases, notwithstanding an expression used in the one first cited which was not necessary to its determination, are not in conflict with the settled rule of law in this state on that subject. In McRickard v. Flint, 114 N. Y. 222 , 21 N. E. 153 , it is said:

“The failure to perform a duty imposed by statute, where, as a consequence, an injury results to another, is evidence upon the question of negligence upon the party chargeable with such failure. Jetter v. Railroad Co., 2 Abb. Dec. 458; McGrath v. Railroad Co., 63 N. Y. 523 ; Massoth v. Canal Co., 64 N. Y. 524 ; Wiley v. Mulledy, 78 N. Y. 310 , 34 Am. Rep. 536 ; Kneupfle v. Ice Co., 84 N. Y. 488 . It is not conclusive evidence of negligence.”

In Connolly v. Ice Co., 114 N. Y. 108 , 21 N. E. 101 , 11 Am. St. Rep. 617 , it is said:

“While the violation of a statute may be proof as a fact for consideration by the jury, such violation does not for all purposes necessarily establish negligence.”

And in Graham v. Railway Co., 149 N. Y. 336 , 43 N.

The judgment and order appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

VAN BRUNT, P. J., and O’BRIEN and HATCH, JJ., concur. INGRAHAM, J., concurs in result.