Opinion
October 17, 1906.
Michael Schaáp, for the appellant.
James C. Cropsey, for the respondent.
If we disregard the fact of the door being marked private, and assume that it and the hall and closet were for general use, the judgment must nevertheless be reversed for the contributory negligence of the plaintiff in groping through the dark passageway. She was not permitted to take it for granted that the passageway would continue on the same level ( Brugher v. Buchtenkirch, 167 N.Y. 153; Hilsenbeck v. Guhring, 131 id. 674). Both of these were landlord and tenant cases, it is true, but we are dealing here, the same as there, with the question of contributory negligence of the plaintiff, and not with the breach of duty or negligence of the defendant in neglecting to provide light, and that question is the very same here as there; it rests on the same principle. Assuming that the landlords were negligent, it was decided that the plaintiffs had been negligent. But in Piper v. N.Y.C. H.R.R.R. Co. ( 156 N.Y. 224) we have a decision exactly in point. There the plaintiff was a passenger in a sleeping car, and he walked out of the vestibule door instead of through the toilet door, which he was groping for in the dark. There the duty of the railroad company to furnish him light and attendance was certainly as great as that of a hotelkeeper to his guest; and this we can say without taking into account the statement in the opinion in that case that such duty of the company to the plaintiff was "the utmost degree of care and skill which human prudence and foresight can suggest in transporting him." From this standpoint that case would be much stronger for the plaintiff than this; and yet his groping in the dark was held to be contributory negligence. The case of Parker v. Portland Pub. Co. ( 69 Me. 173) was that of a person hurt in a dark hall while entering a newspaper establishment to leave an advertisement. He was deemed there by invitation for business purposes, and yet defeated for his contributory negligence in groping along and falling into an elevator shaft. The case of Gaffney v. Brown ( 150 Mass. 479) is that of hotelkeeper and guest. The plaintiff mistook a door from the dining room to the cellar for the dining room door, and was defeated for contributory negligence in not looking where she was going.
The judgment should be reversed.
HIRSCHBERG, P.J., and JENKS, J., concurred; WOODWARD, J., dissented; RICH, J., not voting.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.