Silverman v. Ulrika Realty Corp.

239 A.D. 194, 267 N.Y.S. 360, 1933 N.Y. App. Div. LEXIS 7995

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 1933
• Status: Published

Opinions

Untermyer, J.

At nine-thirty in the evening of September 3, 1929, the plaintiff accompanied his wife, who was in need of medical attention, to a physician whose office was in an apartment house owned by the defendant. According to the plaintiff’s testimony, he opened the door leading from the street and, followed by his wife, advanced into the vestibule. The plaintiff’s evidence, contradicted by evidence offered by the defendant, was to the effect that the vestibule was in complete darkness and that after proceeding five or six feet he stumbled against a step in the vestibule, sustaining the injuries for which this action was brought. The jury found a verdict in favor of the defendant.

The only error complained of on this appeal relates to the charge of the court on the question of the plaintiff’s contributory negligence. The court in substance charged that if the plaintiff, realizing that the vestibule was dark, proceeded further and was injured, he was guilty of contributory negligence as a matter of law. The court, it is true, submitted to the jury the question whether the plaintiff advanced into the vestibule after perceiving that it was dark, but it coupled the submission of that question with specific instructions that if the jury found that the plaintiff was conscious of the darkness and proceeded further he was guilty of contributory negligence as a matter of law. Since the plaintiff had testified that the vestibule was “ pitch dark ” and that he observed the condition when he opened the vestibule door, the charge was tantamount to the direction of a verdict in favor of the defendant. We think the court was in error in these instructions to the jury. The question of the plaintiff’s negligence should have been submitted to the jury as an issue of fact to be determined in accordance with the jury’s conception of ordinary care. We are concerned here with a situation in which, by statute (Multiple Dwelling Law, § 40), the primary duty of furnishing light rested on the defendant as the owner of the premises. That duty was imposed for the protection both of tenants and the visitors of tenants who, like the plaintiff, might have occasion to use the public halls. (Loucks v. Dolan, 211 N. Y. 237.) To hold that the plaintiff was negligent as matter of law in proceeding through a vestibule or hallway in which the defendant had failed to furnish fight is, in effect, to accord to the owner Immunity from the consequences of the violation of the statute no matter how willful or persistent it may be. So unrelenting a rule of contributory negligence ought not to be applied where it results in relieving the landlord from performance of a statutory duty by shifting that duty upon those for whose protection the statute was intended. (Cf. Downs v. Brown Realty Co., 152 App. Div. 451.) The jury should have been instructed that the question of the plaintiff’s negligence was one of fact to be determined in the fight of all the circumstances. The jury would then have been entitled to offset the care actually exercised by the plaintiff in moving in the darkness, the character of the place where the accident occurred (Dollard v. Roberts, 130 N. Y. 269), the special circumstances requiring the plaintiff to reach the physician without delay (Laufer v. Shapiro, 210 App. Div. 436), against any danger ordinarily to be apprehended by proceeding in the dark (Totten v. Phipps, 52 N. Y. 354.)

The decisions principally relied on by the defendant (Piper v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 224; Brugher v. Buchtenkirch, 167 id. 153; Rohrbacher v. Gillig, 203 id. 413) are of a very different character. None were cases where the absence of light constituted the violation of any statutory duty. None were cases where the plaintiff was injured in a place through which it was necessary to pass in order to reach his destination. In all there were other peculiar circumstances, indicative of negligence. More pertinent here, we think, are the decisions in Kenney v. Rhinelander (28 App. Div. 246; affd., 163 N. Y. 576); Brown v. Wittner (43 App. Div. 135) and Bornstein v. Faden (149 id. 37; affd., 208 N. Y. 605). In Brown v. Wittner (supra) a tenant was injured while using a stairway which the owner, in violation of the statute, had failed to light. The question of the plaintiff’s negligence was held to be entirely one of fact. This court said (p. 137): “ It could not be adjudged as matter of law that the plaintiff was guilty of contributory negligence. That the plaintiff used the stairway in darkness does not in and of itself convict him of contributory negligence. (Kenney v. Rhinelander, 28 App. Div. 246; Totten v. Phipps, 52 N. Y. 354.) He lived upon one of the upper floors; this stairway led from the ground floor to the second floor, and he was on his way to the street. Whether he was guilty of contributory negligence was a matter for the jury to determine upon all the facts and circumstances of thé case.” More recently in Bornstein v. Faden (supra) this court cited with approval the decision in Brown v. Wittner (supra) and in a similar situation said (p. 40): “It was not contributory negligence as matter of law to use the stairway knowing that it was not lighted, for the decedent had a right to use it. (Brown v. Wittner, 43 App. Div. 135.) ”

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

Finch, P. J., and Glennon, J., concur; Merrell and Townley, JJ., dissent and vote for affirmance.