Opinion
July Term, 1900.
William Blaikie, for the appellants.
Clarence Lexow, for the respondent.
As the principal question presented on this appeal is whether the verdict of $2,750 in plaintiff's favor, rendered after trial of the issues, is sustained by the evidence, it is necessary to refer in brief to the testimony. The action was brought to recover damages for injuries which the plaintiff sustained by a fall down the stairway of defendants' tenement house, 521 West Forty-eighth street, in the latter part of the afternoon of October 20, 1897, occasioned, as alleged, by their negligence in failing to keep the stair carpeting in proper repair and the hallway sufficiently lighted. The stairs were covered with oil cloth and on each stair was a rubber pad, both of which, it is said, contributed to the accident by their worn condition. Gas jets were provided on each landing, but were not lit at the time of the accident, and it was expected that sufficient light would enter the hallway during the day from a skylight above the stairway in the roof and through opaque glass doors and windows entering into the apartments. The skylight was built so that beside two end vertical windows, each measuring about two by three feet, there was an inclined overlapping glass measuring about six feet by three and a half feet. The total width of the hallway was five feet eight and a half inches, the stairway measuring two feet eight inches, and the opening through the floors being five inches wide and eleven feet ten inches long. The tenement house was five stories high with four families on each floor, and the plaintiff, at the time of the accident, lived in one of the front apartments on the third floor, and it was down the stairs leading from the third to the second floor or story that she fell.
Her testimony is that she left her apartment at a little before six in the afternoon and went to see Mrs. Whalen, who lived on the same floor in the rear, and a few minutes later left there and started to go down stairs to mail a letter and walked slowly to the stairway; that it was absolutely dark there all day long and she could not see the steps and tried to get hold of the banister, reaching out with her hand; that she caught her left foot in a worn and torn place in the carpet when her right foot was down on the step below and she fell; that before the accident she had spoken both to Mrs. Daley, the janitress, and also to Mr. Elmer, the rent collector, about the worn carpet and the darkness in the hall and had been promised that these would be remedied and Mrs. Daley had herself admitted that the hall was in a bad way; that before the accident she was in excellent health and did all the housework but can do little now; that she was ill in bed four or five months after the fall and as the result of this accident has lost over thirty pounds in weight.
Dr. Byrne testified that he was called to see the plaintiff at the time of the accident, reaching there about six o'clock, and there was then no gas lit in the hall and it was so dark there that he could not recognize any one; that Mrs. Lendle was severely injured by the fall, having suffered a scalp wound, two fractured ribs, one of which penetrated the chest wall, and other contusions; was under his treatment till February, 1898, and some of the effects of her injuries will be permanent. The doctor identified a piece of oil cloth shown in court by the plaintiff as that which he had seen on the top step of the third floor the day of the accident, as he remembered the torn and worn places.
Other evidence was given as to the precise time the accident occurred, whether or not it was dark in the daytime in the hallway and whether the oil cloth and rubber pad were worn; and upon each of these points the testimony was conflicting. In corroboration of the testimony given by the plaintiff and Dr. Byrne, there is that of the plaintiff's husband, her son, her daughter and her son-in-law, who say the accident occurred near six o'clock, and that it was so dark in the hall in the daytime that persons could not be recognized, and assert that the worn carpeting shown in court by plaintiff was taken from the top step soon after the accident and carefully preserved for the trial. On the other hand, the defendants' witnesses, who were tenants in the building or related to or employed by defendants, state as positively an opposite version. They invariably say that the accident occurred "between four and half-past four o'clock;" agree that it was light enough in the hall in the daytime to read ordinary type; deny that the carpeting produced by the plaintiff was formerly on the step, and, almost without exception, testify that the plaintiff soon after the accident said that she had made a "mis-step." No one was with the plaintiff when she fell, yet most of the defendants' witnesses say that, even after they were informed that she fell because of a mis-step, they immediately examined the carpeting, which they had known was not worn and found it as good as new. Although the defendants' witnesses, some of whom were in the building at all times of day, claim that one could read in the hallway, they admit that to do this they stood very near the banister or in the path of the light from above, which is not inconsistent with the statements of plaintiff's witnesses, that in other portions of the hallway it was dark most of the day. Nor are defendants' witnesses consistent as to time. Mrs. Whalen places the accident between four and half-past and says she was in Mrs. Lendle's apartment a few minutes thereafter. It appears, however, that her supper, which she had generally at six o'clock, was delayed that night. Mrs. Whalen says that the gas was lit that evening in the hall at five o'clock, therein contradicting the doctor and also the defendants' witness, Mr. Daley, who says he lit the gas at four o'clock, as his wife had told him to do. Mrs. Daley, however, states that it was after the accident that she told her husband to light the gas and that the accident occurred between four and half-past, and she then went upstairs to see Mrs. Lendle and afterwards came down and said to her husband, "Please light the gas, because Mrs. Lendle is after falling down." This latter portion of her testimony harmonizes in part with that of Mrs. Lendle's son-in-law, who says he asked Mrs. Daley what time the accident occurred and she said at half-past five, because she looked at the clock, knowing there would be some trouble, and was glad that there was half an hour yet before the gas needed to be lit.
Thus we have sufficient conflicting evidence to render it necessary to submit the issues to the jury. Nor can we find, as matter of law, taking the plaintiff's statement as true, that she was guilty of contributory negligence. She says she walked slowly along the dark hallway to go down stairs to mail a letter and reached out for the banisters, but caught her foot in the torn carpeting and fell. It is urged by the appellants that, knowing the place was dark and dangerous, she should have taken a light. Whether or not a person is guilty of negligence in not carrying a light under such circumstances was raised, considered and passed upon in the case of Kenney v. Rhinelander ( 28 App. Div. 246), recently affirmed in the Court of Appeals on the prevailing opinion of the Appellate Division. There suit had been brought to recover for injuries sustained by a fall in a hallway after ten o'clock at night when there was no light, caused, as alleged, by a torn carpet on the stairs. As therein said: "We cannot adopt as a fixed rule that it is in and of itself contributory negligence for a person to use a stairway under such circumstances without providing himself with a light. Whether or not it was his own negligence in doing so is a question that must be left to the jury."
The question of defendants' negligence was also one for the jury, and upon the evidence they might justly have found either that the carpeting was worn or that the hall was not safe because there were no adequate windows or artificial means of lighting provided. It is admitted that the gas was not lit at the time of the accident and there was evidence that not much light could pass down to the third floor through the five-inch space from the skylight on the roof above the fifth floor, which was the only exterior opening.
The construction given the statute of 1895 (Chap. 567, § 9, amdg. Laws of 1882, chap. 410, § 663), introduced in evidence, which relates to the lighting of hallways in tenement houses, was, we think, as fair and liberal to defendants as they were entitled to receive, although on this appeal much fault is found with it. The law provides that "The owner or lessee of every tenement or lodging-house in the city of New York shall keep a light burning in the hallway upon each floor of said house from sunset until ten P.M. throughout the year. In every tenement house in the said city in which there is a hallway or hallways with no window opening from such hallway outside of said house, a light shall be maintained by said owner or lessee in each such hallway between the hours of eight A.M. and ten P.M. of each day, unless said hallway shall be otherwise sufficiently lighted."
The purpose of the act of 1895 was to secure sufficient lighting in each hallway of a tenement house both by day and by night, and it will be noticed that the statute provides that from sunset till ten P.M., throughout the year, a light shall be kept burning "in the hallway upon each floor." The learned trial judge called the attention of the jury to the fact that they were first to determine whether the accident occurred before or after sunset; and, if before, whether there was "a window from the hallway to the outside. If there was no window from the hallway to the outside, was the hallway sufficiently lighted by the skylight? If it was not sufficiently lighted, then was the accident due to want of sufficient light? * * * Then if it occurred after sunset and if the jury should find that it was after sunset, and that there was no light there, and that the accident was caused by the want of a light and without negligence on the part of the plaintiff, of course, then they must find a verdict for the plaintiff."
The trial justice, therefore, did not determine, as matter of law, that there were no openings in the hallway to the outside, or that the skylight was insufficient, but, assuming the accident occurred before sunset, he left it as a question of fact for the jury to determine whether there was any light received from windows in the hallway opening on the outside or sufficient light from the skylight. He refused, it is true, to hold that the skylight was an opening from the hallway to the outside, and most of the fault which the appellants find is with this ruling which it is insisted is incorrect. What in effect the learned trial judge held was that although a skylight might be an opening on the roof to the outside, in its general acceptation it was not an opening to the outside from the hallway on the third floor.
It may be that in the construction of certain houses and even tenements, all the space in the center of the building used for passageways from the front door to the roof could be correctly described as a hallway, and a skylight or dome on the top might be said to be an opening to the outside from such hallway. It will be noticed, however, as already pointed out, that the act of 1895 itself says that after sunset light shall be provided "in the hallway upon each floor" of the house, and a fair construction, therefore, of the provisions relating to the daytime, wherein mention is made of openings in the hallway to the outside, would be that the statute refers to that part of the hallway which is on each floor; and the words unless "otherwise sufficiently lighted" admit of the consideration whether the skylight in the roof, in the absence of such openings on each floor, gave sufficient light.
Another exception was taken to the introduction of an almanac for the purpose of showing the time of sunset on the day of the accident. An almanac from an unofficial source, and not properly verified, is not, strictly speaking, competent evidence; but receiving it as an aid to the memory of the court and jury is not reversible error. It was entirely proper for the court, without evidence, to take judicial notice of the time of sunset on the day of the accident, and for the purpose of refreshing the mind of the court there was no legal objection to consulting an almanac. In Hunter v. N.Y., O. W.R.R. Co. ( 116 N.Y. 615) it is said: "Thus, it has been held that courts will take judicial notice * * * of the time of the rising and setting of the sun and moon, and generally of those things which happen according to the ordinary course of nature; the course of time and the movements of the heavenly bodies; the coincidence of the days of the week with the days of the month." And in Case v. Perew (46 Hun, 62) it was said: "The almanac was not competent evidence as such to prove when the moon rose on that or any day; but if the statement on the subject in it was correct the defendant could not have been prejudiced by it. Judicial notice will be taken of the time the moon rises and sets on the several days of the year as well as of the succession of the seasons, the difference of time in different longitudes, and the constant and invariable course of nature. It may be assumed that the court, treating the almanac as correctly stating the time when the moon rose on the day in question, received it in evidence to refresh the memory of the jury on the subject. And in that view we think it was competent." In the present case the almanac was expressly offered and received "for the purpose of refreshing the mind of the court and the jury," and we think, therefore, there was no error committed.
We have thus with some detail referred to the evidence relating to the two theories upon which it was sought to establish the defendant's negligence (namely, in maintaining for an unreasonable time a defective pad on the top step or landing, and in failing to properly light the hallway, as required by statute), for the purpose of determining whether the main contention of the appellants was sound, that the preponderance upon either theory was so greatly in defendants' favor that a verdict should have been entered for them, or else that the one entered in plaintiff's favor should be set aside. Our conclusion upon a reading of the record is, as already stated, that these were questions which the trial judge was bound to submit to the jury, and he having done so in a charge which was clear and impartial, we can find no valid ground either in the procedure upon the trial or in the exceptions taken which would justify our disturbing the verdict rendered.
The judgment appealed from should, therefore, be affirmed, with costs.
VAN BRUNT, P.J., INGRAHAM, McLAUGHLIN and HATCH, JJ., concurred.
Judgment affirmed, with costs.