This is a statutory action to recover for the death of Brucha Frieda Goldman, alleged to have been caused by the negligence of the defendants in faffing to light the hallways of the tenement building known as No. 14 Clinton street, borough of Manhattan, New York, between sunset and sunrise, as required by the provisions of section 82 of the Tenement House Act (Laws of 1901, chap. 334), which was re-enacted by section 76 of the Tenement House Law (Consol. Laws, chap. 61; Laws of 1909, chap. 99.)* The defendants were the owners of the premises and building, which was a six-story tenement house with three apartments on each floor. The decedent resided with relatives in one of the apartments on the second floor, being the first floor above the ground floor. She was seventeen years of age, and was well and strong and sewed by hand as a piece worker for a living. The second floor was connected with the entrance hallway on the ground floor by a stairway consisting of sixteen steps. Shortly before sunrise on February 2, 1909, the decedent was on her way from the apartment, of which she was one of the occupants, to the street, and *39to do this she was obliged first to pass easterly along the hallway, separated from the stairway by a railing, and then to turn to her right and go down one or two steps to a platform or landing at the head of the main stairs and then after still further turning to her right to proceed westerly down to the street. There was no light in the hall on the second floor, and the lower hall was not lighted. The only eye witness to the accident came out of the apartment with the decedent and was within a few feet of her. She testified that the decedent was walking slowly with her hand on the railing or banister of the stairs, and that as she turned to go down the stairs she fell and that “when she slipped her foot, she hollered out.”
The testimony of the eye witness tends to show that decedent did not fall until after she reached the landing or platform at the top of the main flight of stairs, but she could not tell whether decedent fell from the first or second step at the top of the main stairs; but she says that she saw decedent falling when four or five steps down. This witness gave further testimony tending to show that she saw the decedent slip “ two or three or four steps below this platform,” meaning the said landing or platform at the head of the main stairs which was one or two steps below the hall above, and she finally stated that decedent was a few steps below the landing when she saw her body falling, hut that she did not know whether decedent “ slipped on the top stair or on the next stair.” The decedent fell to the foot of the stairs and struck her head and died as the result of the injuries sustained. The evidence further tended to show that it was quite dark in the hallway and on the stairs at the time of the accident, and immediately after the accident, in order to see to pick the decedent up and carry her back to her apartment, the gas in the lower hallway was lighted.
At the close of the plaintiff’s evidence the complaint was dismissed on motion of counsel for the defendants on the grounds that plaintiff had failed to establish a cause of action or to show any negligence on the part of the defendants which was the proximate cause of the accident, or that decedent was free from contributory negligence.
We are of opinion that the evidence required the submission of the case to the jury. Section 82 of the Tenement House Act, *40as re-enacted by section 76 of the Tenement House Law, provides as follows:
“Public halls. In every tenement house a proper light shall be kept burning by the owner in the public hallways, near the stairs, upon the entrance floor, and upon the second floor, above the entrance floor of said house, every night from sunset to sunrise throughout the year, and upon all other floors of the said house from sunset until ten o’clock in the evening.”
Counsel for respondents attempts to sustain the judgment on the ground that it was not shown that the occupants of the eighteen apartments in this building did their cooking on the premises; which by the provisions of section 2 of the Tenement House Act, as re-enacted by section 2 of the Tenement House Law, was essential to constitute the building in question a tenement house. That precise point was not taken on the trial, and we are of opinion that it is not now available to the respondents. Moreover it is manifest that such proof could readily have been given, for it appears that decedent and those occupying the apartment with her were accustomed to go out early in the morning to get food for their breakfast, which is some indication that it was to be cooked in the apartment.
It was not contributory negligence as matter of law to use the stairway knowing that it was not lighted, for the decedent had a right to use it (Brown v. Wittner, 43 App. Div. 135); and this being a death case, the evidence sufficiently shows the exercise of proper care on the part of the decedent to require the submission of the question of her freedom from contributory negligence to the jury. There is no evidence that the stairs were obstructed or out of repair, and it is fairly to be inferred that they were not, as there is nothing to account for the accident other than possible want of care on the part of the decedent or inability on her part to see her way. The evidence tends to show that the decedent slipped; but I think it is not material whether she actually slipped, stumbled or missed a step, for whether her fall was due to slipping or stumbling or missing a step, the jury could have found that she was proceeding down the stairs carefully.
The question in the case requiring serious consideration is *41whether the mere fact that the statute was not complied with in respect to lighting the lower hallway is sufficient evidence of negligence on the part of the defendants to present a question of fact for the jury as to whether the violation of the statute was a proximate cause of the accident. We are of opinion that the Legislature in enacting this statute contemplated by the use of the words “proper light,” that the light to be maintained in the lower hallways near . the stairs on the entrance floor should be sufficient to light the entire lower stairway and to enable people lawfully using the stairs, by exercising proper care, to see the steps and avoid slipping, stumbling or missing their foothold. Tested by this rule the evidence of negligence on the part of the defendants was sufficient to take the case to the jury.
It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
Ingraham, P. J., and Dowling, J., concurred; McLaughlin and Miller, JJ., dissented.
Since amd. by Laws of 1911, chap. 388.— [Rep.