Behsmann v. Waldo , 74 N.Y.S. 929 ( 1901 )

Schuchman, J.

The action is brought to recover damages impersonal injuries, occasioned to plaintiff by the carelessness and negligence of the defendant. The evidence adduced established the following facts: The defendant was the owner of the premises No. 28 East Seventy-second street, in the city of New York, on August 15, 1898, when the accident occurred; the house had been built by her (the defendant) and was never occupied; the cellar was a dark cellar, with a stairway leading down to it, and in the cellar was a furnace pit, which was three feet, one inch deep; six feet, nine inches wide, and eleven feet, six inches long, and was filled with water; the width of the cellar was fifteen feet, six inches, and the furnace was three feet, eleven inches square; the pit was parallel to the stairs and was situated one foot, four and three-quarters inches from it. The plaintiff was requested-by defendant to put coal into the cellar. The defendant testified as follows: “1 offered defendant a candle to go down into the cellar; I told him to take a candle and go in the cellar; I held the candle in my hand and some matches; he did not take them, but said, ‘ I have matches of my own, and have been in the cellar before; ’ he further answered,61 am an old coal man and I do not require a candle; I know all the cellars in New York and don’t require a candle.’ ” On cross-examination, defendant further testified that thq plaintiff had been in the cellar before and was familiar with it. One .Michael Orimmins, the caretaker of the house, testified: “That plaintiff went into the cellar first and witness went after him; that when plaintiff reached the bottom of the stairs he lit a match, and that the match went out; that the passageway between the pit and the stairs was wide enough to pass along; that when plaintiff came down he lit a match and passed the little passageway all right and went over to the front of the cellar; that any one could see the furnace and pit when the match was lit; that plaintiff walked ahead of witness between the furnace pit and stairs; that all the way back the plaintiff lit a match, and witness told him to be careful and keep in the left, not to go near the pit; that before going down to the cellar he told plaintiff there was a pit there.”

We must assume that the jury, in rendering a verdict in favor of defendant, credited the foregoing testimony. Under this state of facts, we maintain that the ninth request, viz.: “ That if, when the plaintiff got in" the cellar and relied on matches to light him through instead of a candle that he took the risk of the matches being extinguished, and if he proceeded in the darkness after the matches were extinguished he is guilty of contributory negligence and cannot recover,” was not error. Hilsenbeck v. Guhring, 131 N. Y. 674.

There were no railings around the furnace pit, nor was there any covering on it. The appellant assigns as error the fact that the question, “ Was the pit properly or improperly constructed? ” was allowed to be answered by three witnesses, namely two architects and one mechanical engineer, over appellant’s objections, to which exceptions were taken. We do not think this was error. Finn v. Cassidy, 165 N. Y. 584.

Judgment and order appealed from affirmed, with costs.

Fitzsimons, Ch. J., and Delehanty, J., concur.

Judgment and order affirmed, with costs.