Mustavoi v. St. John Baptist Foundation , 158 N.Y.S. 717 ( 1916 )

COHALAN, J.

This action was brought to recover damages for personal injuries. On the 2d of June, 1915, the plaintiff, a tenant in the tenement house of the defendant, attempted to descend a flight of stairs therein, and fell down 16 steps, in consequence of which she sustained certain severe injuries. At the time of the accident she held an infant in her right arm, had her left hand on the banister, and was proceeding from the third to the second floor. Although it was in the evening, there was no light burning in the hallway, in violation of section 76 of the Tenement House Law.

[1] The failure to comply with this statute is evidence of negligence on the part of the defendant. Schindler v. Wells & Zerweck, 145 App. Div. 532, 130 N. Y. Supp. 344; Bornstein v. Faden, 149 App. Div. 37, 133 N. Y. Supp. 608, affirmed 208 N. Y. 605, 102 N. E. 1099; Kenney v. Rhinelander, 28 App. Div. 247, 50 N. Y. Supp. 1088, affirmed 163 N.Y. 576, 57 N. E. 1114.

[2, 3] The complaint was dismissed at the close of the plaintiff’s case, on the ground that she had failed to establish her freedom from contributory negligence. The evidence showed that the plaintiff was proceeding carefully down the stairway. She was entitled in a non-suit to the most favorable inferences to be drawn from the evidence, and the court was not warranted in disposing of the issue of contributory negligence as matter of law, but should have submitted it to the jury, to be determined by them as one of fact.

Judgment reversed, and new trial ordered, with $30 costs in one action to appellant to abide the event. All concur.