The plaintiff occupied, as tenant, an apartment in defendant’s building, and, in attempting to pass therefrom down a flight of stairs to the street, fell and sustained personal injuries. He instituted this action to recover from the defendant damages upon the ground ■ that his injuries were caused by the negligence of the defendant. The specific allegation of negligence was, that the defendant permitted a rent or hole to be in a carpet which covered the stairs over which he passed and in which, without fault or negligence on his part, his foot was caught, occasioning his fall.
Upon the trial the plaintiff’s testimony tended to show that at about half-past ten o’clock in the evening of the Ith of November, 1893, after the- lights had been extinguished in the hall and upon the stairs referred to, the plaintiff, for the purpose of ascertaining *251the result of an election held on that day, attempted, without the aid of a light, to pass down the stairs to the street," and when he was about two’ feet from a platform, which was located some seven steps from the bottom of the stairs, his foot was caught in a hole in the carpet and he was thereby thrown to the hall below; that the hole in the carpet was about three inches wide by two feet long, and that this had been its condition for at least two months; that the plaintiff had lived in the same apartment for at least two years, during which time he had been in the habit of going up and down the stairs several times each day; that the lights in the hall and upon the stairs were extinguished at ten o’clock each night, which fact the plaintiff well knew. The plaintiff was corroborated as to the eondition of the carpet prior to the accident by his wife, his daughter and three other witnesses. One of these witnesses, and only one of them, corroborated him as to the condition of.the carpet at the time the accident occurred.
The testimony offered on the part of the defendant tended to show that, on the twenty-seventh of October, immediately preceding the day when the plaintiff fell, the carpet in question was relaid on the stairs, and any defects which had theretofore existed in it were then remedied and repaired, and that from that time to and including the evening in question there was no hole in it. Six witnesses were produced, all of whom testified substantially to this effect: One of them testified that he employed a man by the name of Davis to make the repairs, and Davis testified 'that he actually made them, and that when he had completed his work there was no hole in the carpet, and four others either testified that they saw Davis making the repairs, or else that they examined the carpet on the morning following the accident, and there was then no hole in it. Those witnesses were not contradicted by any of the plaintiff’s witnesses, except the plaintiff himself, and one Julia Barveld. Julia Barveld testified that she had noticed the defect described. by the plaintiff prior to the time" he was injured, and that she also noticed it the morning following the injury. She also testified that no repairs were made to the carpet, either prior or subsequent to the time the plaintiff sustained his injuries. The testimony of the other witnesses of the plaintiff, as to the condition of the carpet, was not in conflict with the testimony of the defendant’s witnesses, because *252none of them stated that the carpet was out of. repair between the time that Davis "testified that he fixed it and the time when plaintiff was injured. And in this connection it is to be noted: that the plaintiff, after he was injured, continued to reside in the apartment until he was. dispossessed for non-payment of rent, thirteen months after the accident occurred ; and that, up to that time, he had never made a suggestion to the defendant, or any one representing her, that she was in any way liable or responsible for the injuries which he had sustained. It is also, to he noted that the witness, Julia Barveld, testified that the carpet was not repaired either before or after the accident. It is incredible that a hole as large as the one claimed by the plaintiff would have been allowed to remain after an accident had occurred like this" one, and that, too, without complaint from the • person injured. The fact that the testimony of defendant’s witnesses (all of whom.were disinterested) to the effect that the carpet was repaired the latter part of October, and that from that time to and including the day of the accident there was no hole in it, was only met by. the testimony of the plaintiff and one witness, when considered in connection with the other facts and circumstances connected with" the accident, leads us to believe that this verdict was against the weight of evidence, and for that' reason should have been set aside by the learned trial justice.
After a careful consideration of the record, I am also of the opinion that the plaintiff, as a matter of law, ought not to have recovered, and that the motion for a nonsuit should have been granted. It may be. conceded that the carpet in question was in the condition claimed by the plaintiff. If so,- the plaintiff knew it. He had used the stairs and passed over the carpet several times each day during the two months that the hole had existed, and if it was dangerous to use the stairs, by reason of the defect in the carpet upon them, after the lights had been extinguished in the hall and upon the stairs, the plaintiff knew and appreciated that danger as well as any one could—certainly as well as the defendant" or her agents. According tó his own statement he did not act suddenly ; his attention was not diverted by anything, but he,deliberately attempted to pass down the stairs without the aid of a light, when the defect was known and the darkness was obvious. Under such circumstances, it seems to me it must he held that the plaintiff is not in a position, *253by reason of his own negligence, to call upon the defendant to respond in damages for the injuries which he sustained.
I, therefore, cannot concur in the opinion of Mr. Justice Patterson that this judgment should be affirmed; I think it should be reversed and a new trial granted, with costs to the appellant to abide the event.
Van Brunt, P. J., concurred.
Judgment and order affirmed, with costs.