Plaintiff’s cause of action was predicated upon dangerous construction of the cellar steps and absence of light. (Brugher v. Buchtenkirch, 29 App. Div. 342.) The case was submitted upon this theory and the jury was justified in finding negligence on the part of the defendant.
The question of plaintiff’s contributory negligence was for the jury. She had been accustomed to use the stairs on numerous occasions for the purpose of getting access to the rear yard to hang out clothes to dry. She used the only available means provided for reaching the yard. Having used the stairs without sustaining injury on previous occasions, it was for the jury to say whether plaintiff was not justified in believing that she could safely use them again. (See record on appeal and discussion in points of counsel in Litsch v. Todds, Irons & Robertson, Inc., 209 App. Div. 862; affd., 239 N. Y. 559.) Her testimony on redirect *515examination was to the effect that while some light would have been thrown upon the upper part of the stairway if the door leading from the public hallway was left open, that part of the stairs, and more particularly the steps upon which she lost her footing, would still have been in darkness.
I, therefore, vote to affirm.
Untermyer, J., concurs.
Judgment reversed, with costs, and complaint dismissed, with costs.