I am unable to concur in the opinion of Mr. Justice Laughlin. The absence of a light, being in violation 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),* established, prima facie, the negligence of the defendants, but it does not follow that the fall of the intestate which resulted in her death was in any way due thereto. There is absolutely no proof in the record, as I read it, that permits even an inference that the absence of the light was the proximate cause of the intestate’s fall. The only eye witness of the accident testified that the intestate “was walking by the banisters of the stairs by the railing, a railing* like this (indicating). I noticed how she was walking; she was walking slow, ordinary walk; she had hold of the banister with her right hand. I was walking near the wall. I was just near her. There was no light at that time in the hall at all. She then turned at the stairs and fell down. I did not see; *42I heard her fall down. I heard the fall; I did not see it. When she slipped her foot, she hollered out. I heard her fall down. ”
Whether the fall were occasioned by an obstruction upon, or the condition of the stairs, her own carelessness, or the absence of the light, does not appear. One can conjecture that it was due to one of these causes as well as the other, but property cannot be taken from one person and given to another upon a mere guess. Its security rests upon a more substantial basis. It is a matter of common knowledge that people sometimes fall down stairs in broad daylight. Before a recovery can be had in an action to recover damages for negligence, there' must be proof of causal connection between the negligence and the injury. While it is true, in case of death of the injured person, there being no eye witness of the occurrence, slight evidence may suffice, nevertheless, in all of these cases there must be some fact or circumstance proven from which an inference may be drawn that the deceased exercised due care. (Schindler v. Welz & Zerweck, 145 App. Div. 532; Baumler v. Wilm, 136 id. 857; Jones v. Ryan, 125 id. 282.)
The only fact which here appears is that the intestate, while attempting to go down the stairs, fell and sustained injuries from which she died shortly thereafter. I do not see how it can be said from such fact that there was any proof of the exercise of any care whatever on her part. For do I see how a recovery could be sustained if the plaintiff had had a verdict unless the rule that plaintiff must prove freedom from contributory negligence is to be abolished.
I am of the opinion that the complaint was properly dismissed and for that reason vote to affirm the judgment.
Miller, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.
Since amd. by Laws of 1911, chap. 388.— [Rep.