I do not think the plaintiff was guilty of contributory negligence as a matter of law. He'had the right- to use the hallway and it was necessary for him to do so. As he left the dining room, he testifies, he began to feol, presumably with his outstretched hand, for the knob of the bathroom door. He repeatedly describes himself as feeling along with his right hand-. Under such circumstances it is fairly to be inferred that he was walking carefully and slqwly.
The situation is unlike that in Brugher v. Buchtenkirch (167 N. Y. 153), In that case the plaintiff was making a tour of discovery of a strange building and deliberately walked into a dark passageway.
In Kenney v. Rhinelander (28 App. Div. 246 ; affd., 163 N. Y. 576) the tenant knew of the torn carpet ,on .the stairway which he was descending in the dark. This court held that whether or not he was guilty of contributory ’negligence was a question for the jury.
And in Brown v. Wittner (43 App. Div. 135) this court also held that the using of a stairway in darkness was not contributory negligence as matter of law and reversed a nonsuit.
The prevailing opinion concedes that the question of defendant’s negligence was for the jury, and I think plaintiff’s contributory negligence was also a matter for the jury which they properly decided.
I think, therefore, the judgment should be affirmed.
Patterson, P. J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event;