Opinion
June 1, 1943.
Action by a wife to recover damages for personal injuries sustained through the alleged negligence of the defendant, and by her husband for expenses and loss of services. Plaintiffs appeal from a judgment dismissing the complaint at the close of their case. Judgment reversed on the law and new trial granted, with costs to appellants to abide the event. The plaintiff wife sustained injuries when she attempted to leave a factory building by descending a stairway therein, which stairway was so dark that she could not see it or the handrail thereof. There was evidence that the stairway was not properly lighted, as required by the Labor Law, that the risers thereof in respect to height violated the Building Code of the City of New York, and that the handrails violated the provisions of the Industrial Code. The complaint was dismissed upon the ground that as matter of law the plaintiff wife was guilty of contributory negligence. This ruling constituted error. ( Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 306; Whitehouse v. Single, 217 App. Div. 204; Weisthal v. Arena Bldg. Corp., 232 App. Div. 694, affd. 257 N.Y. 537; Rix v. Siegel, 235 App. Div. 499; Kaplan v. 598 Broadway Corp., 238 App. Div. 767, affd. 262 N.Y. 574; Toitman v. Roosin, 166 N.Y.S. 821, not officially reported.) Close, P.J., Hagarty, Carswell, Taylor and Lewis, JJ., concur.