The only serious objection to the affirmance of the judgment appealed from (apart from the size of the verdict) is that the court erroneously submitted the case to the jury with instructions that it might find defendant liable either at common law, or under the Labor Law, whereas upon the evidence the case should have been submitted under the Labor Law alone.
I fully appreciate the force of the general rule that when a case has been submitted to a jury upon two theories, one of which is supported by the evidence, and the other of which is not, and a general verdict is rendered, the judgment should not be sustained because it is impossible to determine which theory of the case the jury acted upon. But that *96general rule should be applied with discretion. In the present case the evidence was ample to sustain a recovery by plaintiff under the Labor Law.
The building in which the accident occurred was clearly a “tenant-factory” as defined in section 94 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36), and the stairway was as clearly unprovided with “ proper and substantial” handrails. (Labor Law, § 80.)* In fact for part of the way there were no handrails at all. So much the jury must have found from the evidence, and so finding the defendant was shown to be prima fade guilty of negligence, and this was sufficient to justify a verdict, the happening of the accident, the damage to plaintiff and her freedom from contributory negligence having been found by the jury as they must have been found to justify a verdict upon any theory of the case.
It seems to me to be going very far to assume that the jury may have disregarded the plain violation of the Labor Law disclosed by the' evidence, and have resorted to the common law to find a foundation for charging the defendant with negligence, if indeed (which is very doubtful) it appreciated the distinction between liability under the Labor Law and liability at common law.
The plaintiff has now had two trials and has succeeded in both. Her first judgment was reversed for an error in the admission of evidence. It is now proposed to reverse her second judgment for an error in the charge which I cannot help thinking should be disregarded as immaterial. There can be no doubt, I think, that the plaintiff has shown herself to be entitled to some recovery, and that if a new trial be had without error in the admission of evidence and with an unimpeachable charge by the court she will again recover. We are constrained by section 1317 of the Code of Civil Procedure to “ give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.” Under the circumstances of the case the error in the charge of which I have spoken cannot be *97said, in my opinion, to have affected the substantial rights of the parties.
I do think, however, that.the verdict was much too large. I am, therefore, in favor of reversing the judgment and ordering a new trial, with costs to appellant to abide the event, unless she will stipulate that the recovery be reduced to $4,000, in which event the judgment, as modified, should be affirmed.
Judgment reversed, new trial ordered, costs to appellant to abide event.
Repealed by Laws of 1913, chap. 461, § 2. Now Labor Law, § 79e, subd. 1, as added by Laws of 1913, chap. 461.— [Rep.