Wm. A. Smith, Freund and Woods. The opinion of the court was delivered by William A. Smith, A.j.s.c.
The plaintiff, a middleaged woman who resided on the first floor of a three-story, six-family dwelling house in Union City, brings this action against the defendant owner of the premises. She had occupied the first floor apartment in the premises for about 11 years, when on December 3, 1949, shortly before 10 P.M., she went upstairs with a friend to make a social visit to Agnes DiCorcia, who occupied an apartment on the second floor and was the superintendent in charge of the premises for the landlord. At the time she ascended the stairs for her visit lights were on in the downstairs hall and in the second floor hall. Shortly after 10 P.M. Mrs. DiCorcia went downstairs to the first floor and put out the light in the first floor hall by a switch there. Plaintiff left with her friend to return to her first floor apartment about 11:45 P.M. and at that time the light was still burning in the second floor hall, but the light in the first floor hall was out. Plaintiff preceded her friend, went to the head of the stairs to the first floor and grasped the banister with her right hand and proceeded to descend the stairs. She says she fell from the eighth step where her foot caught in something and she heard it tear and then fell and injured herself.
This suit charges negligence on the part of the defendant landlord, the proof being directed to the failure to light the first floor hall as required by the statute and failure to keep the stairs in proper repair. At the end of the plaintiff's case the defendant's attorney moved for dismissal of the cause of action on the ground of no proof of negligence and that the plaintiff was guilty of contributory negligence and assumption of risk. The court granted the motion to dismiss on the
ground that the plaintiff assumed the risk of her fall in using the stairway under the conditions existing, and stated:
"After a careful consideration of the arguments made, of the proofs adduced and of the cases cited, which I have examined, I believe the court to be bound on this motion by the decision in Solomon versus Finer. I believe that each and every of the defendant's cases is distinguishable. I believe that cases involving a common roof, common stoop, common cellar, and common toilet are to be embraced within a different category than that which is presented by the situation before the court. * * *
Apparently the subject of darkness and common stairway presents a category of its own. I believe that by way of fair comment on that it can be said what was said in the case of Solomon versus Finer: that there the plaintiff has recourse to safety. He can seek guidance or he can refuse to descend or he can see that light is provided. In the present instance it seemed a perfectly simple thing for this plaintiff, in this situation, to guard herself against whatever the dangers were and the presence of which she thoroughly understood. She could have had the superintendent provide light for the occasion of her descent. All of which was not done but which appears to be incumbent upon the plaintiff in a case of this kind, according to the reasoning and the decision of the court in Solomon versus Finer.
For the reasons indicated, I feel obliged to grant the motion to dismiss.
Mr. Miller: May I ask what your Honor's ruling is as far as the step is concerned, as to assumption of risk? There are two separate aspects. One is the lighting and the other is the dangerous step which the plaintiff knew nothing about.
The Court: I intend to hold that the assumption of risk goes to the entire factual situation presented."
It is from this ruling by the trial judge that the plaintiff appeals.
On the appeal the defendant also pressed his right to a dismissal because the plaintiff had not established a prima facie case of negligence. The record, we conclude, contains ample testimony to raise questions for the jury on the charge of negligence. As to the question of failure to maintain a light on the first floor from sunset to sunrise as provided by the statute, the superintendent, Mrs. DiCorcia, testified that she had ...