#### Anna Petrowsky, Appellant, *v.*Sarah Bernstein, Respondent.

(Supreme Court, Appellate Term,

March, 1912.)

Negligence — Contributory negligence — Negligence of person injured as proximate cause of injury in general —Dark passages, stairways and hallways — Actions.

Where the janitor’s wife knew of a hole in the floor of a hallway in the apartment house she is bound to exercise unusual and extraordinary care commensurate with the risk in using the hallway; but, where, in an action to recover for personal injuries, she testifies that upon leaving her apartment and while she was walking very slowly and carefully through the hallway, her right foot tripped in the hole and she fell, the question of her contributory negligence is for the jury, and the dismissal of the complaint at the close of plaintiff’s case is reversible error.

Appeal by plaintiff from a judgment in favor of defendant rendered in the City Court of the city of blew York entered upon the dismissal of the complaint.

Otto H. Droege, for appellant.

Lyman A. Spalding (Theodore H. Lord, of counsel), for. respondent.

Guy, J.

Plaintiff appeals from a judgment in favor of defendant entered upon- the dismissal of the complaint at the close of plaintiff’s case. '

The action is brought to recover damages for injuries alleged to have been sustained by plaintiff through tripping and falling in a hole in the floor of a hallway in premises belonging to defendant, in which premises, the plaintiff’s husband, the j anitor of the premises, occupied an apartment. The evidence shows that plaintiff assisted, her husband in the performance of his duties; that the janitor’s apartment was in the basement just back of the furnace in the back part of the building, and that the accident occurred in the hallway *660immediately in front of the janitor’s apartment, which hallway was very poorly lighted, there being two windows in the hallway, -obscured by dirt. There was in the hallway a gas jet which the defendant “ would not permit * * * to be lit.” Plaintiff admitted that she lit the gas jet when she swept the hall.- The day of the accident was a dark and stormy day. It appears by the evidence that plaintiff had an intimate knowledge of the condition of the hallway and of the existence of the hole in-the floor into which she fell. She testifies as to the accident: “ I went out myself, and was going- out- very carefully, and as I was going out through that hallway, the hallway was very dark, and it made it still darker because-1 came out of the light room, and I didn’t then just watch and I fell. My right foot tripped in that hole, and I fell forward.” She further testified as to- the time when her foot caught: “ I was walking very slowly and carefully.”, Further evidence was introduced as to the condition of the hallway, but none bearing directly upon the happening of the accident.

At the close of plaintiff’s case the court dismissed the complaint on the ground of contributory negligence. I think this was a question for the jury. The plaintiff was lawfully occupying one of the apartments in the building, with the consent of the landlord, and had the right to use the hallway in going to and from the apartment occupied by her. Even though she had intimate knowledge of -the condition of the floor of the hallway leading to her apartment, she was not precluded from exercising the right of entrance to and exit, from her apartment under the conditions which prevailed in such hallway, over which the landlord had entire control. The duty unquestionably devolved upon her, with such knowledge of the defective condition of the floor, to use an unusual and extraordinary degree of care, a degree of care commensurate with the risk which she knew confronted her in using the hallway in such condition. Her testimony, however, shows that she had exercised a very considerable degree of care; and it was for the jury to say whether the care so used by her was such care as an ordinarily prudent person would have used under the circumstances, with knowledge of the *661then existing conditions in the hallway. See Peil v. Reinhart, 127 N. Y. 381. In Kenny v. Rhinelander, 28 App. Div. 246; affd., 163 N. Y. 576, oh a similar state of facts, the court, in affirming a judgment for the plaintiff, said: “■ The evidence is undisputed that the plaintiff came down the staircase in the dark, knowing of the -alleged unsafe condition of the carpet * * *. We cannot adopt as a fixed rnle 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 of fact that must he left to the jury under all the circumstances of the case * .* *. The most that can be required would be to hold that he must exercise great care.”

Sufficient evidence was introduced establishing negligence on the part of the defendant, and the plaintiff made out a case which entitled her to go to the jury.

The dismissal of the complaint was, therefore, error and the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Seabury and Bijtjr, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.