The plaintiff, a tenant of rooms in a building belonging to the defendant, sued to recover damages for injuries alleged to have been sustained by him in falling on a stairway, such fall happening, as claimed, in consequence of the negligence of the defendant in permitting, after notice, a torn and unsafe carpet to remain on the stairway. • The building was a tenement house occupied by many tenants, and the stairway was for the general use of the tenants and was altogether under the control of the defendant or her agents. On the trial of the cause the plaintiff obtained a verdict, from the judgment entered upon which and from an order denying a motion for a new trial this appeal is taken.
It appeared in evidence that some time after ten o’clock on the night of November 6, 1893, the plaintiff descended the staircase from his apartment, and when he reached a point thereon near the bottom of a flight of steps ending at a platform, he fell and was injured. He came down the staircase in the dark, all the lights in the building having been extinguished at ten o’clock, in accordance with a rule of the house, of which he was fully aware. He claimed that he came down the stairs carefully; that there was a banister upon one side of the staircase, and that he used that in descending, and that when he came to the second step from the bottom of the flight, which terminated at the platform, his foot caught in a torn and ragged carpet, which he also knew was there and in that condition, and .that as a consequence of his foot thus catching he fell and was injured. There was a very sharp conflict in the testimony concerning the condition of the carpet. Witnesses, on behalf of the plaintiff testified that at the point at which the plaintiff fell the carpet had been frayed; that there was a large gap in it; that it had been in that condition for two months or more before the accident; that the attention of tlie defendant’s agent had been called to it; that it had not been repaired; that other tenants had tripped upon it, and that the day after the accident the carpet was in the same condition in which it had been for two months previous to the accident. On the other hand, witnesses for the *248defendant testified that the carpet on the staircase was in good condition, and one witness, swore that he himself had repaired the carpet-and put it in safe condition only a few days before the accident occurred, and there were other' witnesses, the effect of whose testimony was that the carpet had been repaired and was safe for use. Upon that conflicting evidence the jury found in favor of the plaintiff. The justice presiding at the trial could not have done otherwise than submit the issue of the defendant’s negligence to the jury upon that conflicting evidence. It came clown to a cpiestion of credibility, and although we might have been better satisfied were the verdict the other way, we have no right, upon sucli a record as this, to substitute our judgment for that of the jury. It-has often been said that, upon such conflicts of evidence as are presented, an. appellate court will not interfere with a verdict unless it plainly appears that it was the result of prejudice or passion, or clear misunderstanding of tlie'facts.
Another reason urged for the reversal of the judgment is that it was shown that the plaintiff was guilty of contributory negligence. We are asked to' determine that such contributory negligence existed ■ as matter of law. The evidence is undisputed that the plaintiff came down the staircase in the dark, knowing of the alleged unsafe condition of the carpet. It is also claimed that it was his duty, as matter of law, not to use the staircase under these circumstances without carrying or having the aid of a light. 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 under all the cir-. cnmstances of the case, for it is obvious that no general rule can be applied to such a situation. The most that can be required would be to hold that Mie must exercise great care, and the trial judge so charged in this case. He told the jury that “ if the stair carpet was in the condition, testified to by plaintiff’s witnesses, that imposed upon .the plaintiff special care in going up and down in using it.” The' plaintiff testified as follows: “ I came down as carefully as I could in the dark; the lights were out; * * * it was half-past ten o’clock when I went down stairs; it was all dark; I did not take a light with me; I didn’t have any light; I came down in the *249dark. In the stairway I came down there was a banister on either side. What I mean-in my complaint, when I state there was not any banister, was that where I fell ther'e was no banister at the place from where I fell. The banister extended from the platform up to the top of the stairs, or near the platform ; it came down very close to it. I had my hand on that banister; I fell notwithstanding ; I was in the dark- at the time.”
It was for the jury to say, under these circumstances, whether the plaintiff was negligent in not taking a light with him. It was claimed by the defendant that there was an additional circumstance affecting the question of contributory negligence, namely, that the plaintiff was intoxicated when he came down the stairs. There was a conflict in the testimony, also, respecting that. The jury, by their verdict, evidently believed that his intoxication, if it existed, had nothing to do with the accident.' ■ The effect of intoxication as connected with the issue was properly put to the jury by the trial justice, who charged that if the plaintiff, with knowledge of the condition of the stairs, was heedless or careless or negligent because he had put himself in such a condition, through Lis conduct, that he was incapable of attention, then he could not recover. The case was properly put to the jury on both the issues involved, and none of the requests presented by the defendant and refused by the court were in such form as to require any other ruling than was made upon them.
The court properly declined to charge that if the plaintiff undertopk to go down the stairs without a light after ten o’clock, after the light was extinguished, he was guilty as matter of law of contributory negligence and could not recover ;■ and that if the plaintiff undertook to go down the stairs while in an intoxicated condition he was guilty of contributory negligence, he could not recover. The last request was entirely too broad. ' (Lynch v. The Mayor, 47 Hun, 524; Milliman v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 642; Newton v. Central Vermont R. R. Co„ 80 Hun, 491.)
The court was asked to charge that if the defendant undertook to go down stairs unaided after the lights were put out, in an intoxicated condition, without a light he was guilty of contributory negligence and cannot recover, and the verdict must be for the defend*250ant. The judge refused.to charge that in so many words, but did substantially charge it in modified form by ■ defining the words “ intoxicated condition ” as meaning that if he were in such a state as to be incapable of giving the attention to what he was doing,, which a man of prudence and reasonable intelligence would give. That modification of the request was substantially correct.
The other exceptions to refusals to charge ■ present the same questions, only in a different way,- and require no further consideration. In his instructions the trial judge plainly and clearly stated the rules of law applicable to the case on both the issues of negligence and contributory negligence. On the whole case we do not find any error which would justify a reversal of the judgment; nor do wé find that the verdict is against the evidence or the preponderance of evidence. As said before, a different verdict might have been more satisfactory, but we cannot usurp the function of the jury and determine from a printed record matters resting principally, if not entirely, upon the credibility of witnesses examined in the presence ' of the jury.
The judgment and order appealed from must be affirmed, with costs.
Barrett and Rumsey, JJ., concurred; Vah Bruht, P. J., and McLaughlin, J., dissented.