If defendant's testator did the work negligently, he would have been liable to the owner, with whom he made his contract, but not because thereof, to the adjoining owner. The liability imposed by statute is not predicated upon the degree of care used, but is absolute and unqualified. Post v. Kerwin, 133 App. Div. 404, 117 N. Y. Supp. 761. Nor can plaintiff recover from defendant's testator, on the theory that the contract was for his benefit. The action was, therefore, improperly brought against defendant, and the motions to dismiss should have been granted.

The judgment will therefore be reversed, with costs, and the complaint dismissed, with costs. All concur.

DAVY v. LYONS.

(Supreme Court, Appellate Term. February, 1911.)

NEGLIGENCE (§ 62*)-PERSONAL INJURIES-DEFECTIVE PREMISES-UNLIGHTED HALLWAY.

Though defendant's hallway was not lighted as required by the tenement house law (Consol. Laws, c. 61), and was dark, she was not liable for injuries to a visitor, who while ascending the stairs was run into by a boy negligently descending; the latter's negligence being the immediate cause of the accident.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 76-79; Dec. Dig. § 62.*]

Bijur, J., dissenting.

Appeal from City Court of New York, Trial Term.

Action by Frederick Davy against Mary Lyons. From an order setting aside a verdict for $350 in his favor, plaintiff appeals. Modified by granting a new trial, and, as modified, affirmed.

Argued before SEABURY, PAGE, and BIJUR, JJ.

Charles Maitland Beattie, for appellant.

Crosby & Fine (Samuel Fine, of counsel), for respondent.

PAGE, J. Conceding that the darkness of the hallway was chargeable to the defendant's negligence through failure to observe the requirements of the tenement house law (Consol. Laws, c. 61), this did nothing more than furnish a condition by which the injury was made possible. The injury would not have occurred but for the independent act of the boy in negligently running down the stairs and colliding with the plaintiff. The act was an independent cause of the injury by one for whose act the defendant was not responsible, and by one over whom she had no control. The stairway was shown to be in good condition. There were no obstacles in the way, and no pitfall or dangerous opening shown to exist to endanger plaintiff's progress. Therefore, from all that appears by the evidence, the trip would have been made safely, notwithstanding the darkness, but for the boy's negligent descent of the stairs. How is it possible, then, to hold that the darkness was the proximate cause of the injury? An able writer on negligence stated the proposition:

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

"Supposing that, if it had not been for the intervention of a responsible third party, the defendant's negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? This question must be answered in the negative, for the general reason that causal connection between negligence and damage is broken by the interposition of independent human action." Wharton, § 134.

The Supreme Court of the United States said:

"The question also is: Was there an unbroken connection between the wrongful act and the injury-a continuous operation? Did the facts constitute a continuous succession of events so linked together as to make a natural whole, or was there some independent cause intervening between the wrong and the injury?" M. & St. P. Ry. Co. v. Kellogg, 94 U. S. 469, 475, 24 L. Ed. 256.

The defendant in this case was chargeable for all the consequences that naturally flow from her negligent act, and was liable for the consequences which could have been reasonably foreseen. It cannot be said that the boy's heedlessly and carelessly running down the stairs naturally followed from the darkness of the hallway. Nor could the defendant reasonably foresee his negligent act in thus running into the plaintiff. The reasonable acts of a prudent man may be foreseen, but the negligent acts of a careless person are beyond the ken of human foresight. The principles controlling this case are well known. Their application to a particular case is difficult, and the citation of authorities, without a careful consideration of the facts of each case, is not profitable. It may be that the negligence of the defendant in failing to properly light the hallway was causa sine qua non. But the causa causans was the negligence of the boy in colliding with the plaintiff. For this act of an independent third person the defendant cannot be held liable.

The setting aside of a verdict, without a direction for the future disposition of the case, leaves the matter in an anomalous condition. The order should be modified, by granting a new trial, with costs to abide the event, and, as modified, affirmed, without costs.

SEABURY, J., concurs.

BIJUR, J. (dissenting). This action was brought to recover against a landlord on the ground of negligence. Plaintiff, a man 60 years old, about to visit his sister, was, at 6 o'clock in the evening of August 5, 1909, ascending the second flight of stairs in the tenement house owned by the defendant. The hall and stairway were dark, and the stairs were carpeted. A boy, 11 years of age, descending "in a hurry," collided with plaintiff, throwing him to the ground and injuring him. The jury, after a careful charge, found in favor of the plaintiff. The order setting aside the verdict was based on the opinion of the learned trial judge that the unlighted condition of the hallway (in violation of the tenement house law) was not the proximate cause of the plaintiff's injury, citing as authority Storey v. Mayor, 29 App. Div. 316, 51 N. Y. Supp. 580.

We have had recent occasion to examine the question of proximate

Misc. Rep. 623, 125 N. Y. Supp. 1106. But the precise point now in issue was not present in that case. There, a team of horses, attached to a wagon, left unattended in the city streets, was run into by defendant's wagon, and, having thus been caused to run away, caused the damage for which plaintiff sued. We held that, while leaving a team unattended in a city street might be regarded as negligence, that negligence was not the proximate cause of the injury, but might be considered the causa sine qua non. The causa causans was the negligence of the defendant in colliding with the team, starting it on its career of destruction. See Trapp v. McClellan, 68 App. Div. 362, 367, 74 N. Y. Supp. 130.

It is true, as claimed by respondent, that if the independent, intervening, negligent act of a third person had brought about the accident, the respondent should not be held. But, even assuming that the conduct of the boy had in some way been negligent, this cannot be regarded as an independent act of negligence, but as one strictly dependent upon, and correlated with, the darkness negligently permitted to exist by the respondent. There is, it may be said, no proof that the boy was descending the stairs in any unduly precipitate manner, or, indeed, in any way which would not have been perfectly safe under ordinary circumstances. If his descent is, nevertheless, to be regarded as negligent, it can only be because it was negligent to descend a dark stairway; and we would then be confronted with the remarkable proposition that the landlord of a tenement house, who, according to the inferences necessarily to be drawn from the verdict, had negligently permitted the hallway to remain in darkness, might be relieved of responsibility because a tenant had used that hallway for the essential purpose of egress from the premises.

The order should therefore be set aside, with $10 costs and disbursements, and the verdict and judgment reinstated, with costs.

GRUNFELDER v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Division, Second Department. February 24, 1911.) 1. CARRIERS (§ 295*)-INJURIES TO PASSENGER-NEGLIGENCE.

A motorman suddenly discovered a heavy truck on the track, and called to the passengers to jump, and himself jumped; plaintiff being injured in jumping. The car did not strike the truck hard enough to do any damage. Held that, as the event showed that the car could have been stopped before striking the truck, the motorman was negligent in not attempting to stop the car.

[Ed. Note. For other cases, see Carriers, Dec. Dig. § 295.*]

2. CARRIERS (§ 330*)-INJURIES TO PASSENGER-CONTRIBUTORY NEGLIGENCE. That the motorman jumped from the car, and advised the passengers to jump, to avoid a collision, justified a passenger in jumping, so as not to make her negligent in doing so.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1357-1362; Dec. Dig. § 336.*]

3. EVIDENCE (§ 544*)-OPINION EVIDENCE-TESTIMONY BY PHYSICIAN.

Where all of the physical facts on which the question was based were incorporated therein, a physician who examined plaintiff for the purpose For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

of testifying could be asked whether the condition found could have been produced by the accident, though he did not see plaintiff until some years after the accident.

[Ed. Note. For other cases, see Evidence, Dec. Dig. § 544.*]

Jenks, P. J., and Burr, J., dissenting.

Appeal from Trial Term, Kings County.

Action by Rosy Grunfelder against the Brooklyn Heights Railroad Company. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals. Affirmed.

Argued before JENKS, P. J., and HIRSCHBERG, BURR, RICH, and WOODWARD, JJ.

D. A. Marsh, for appellant.

Henry A. Powell, for respondent.

WOODWARD, J. The plaintiff was a passenger on one of defendant's cars on Myrtle avenue, borough of Queens, on the 17th day of August, 1905, at about 8 o'clock in the evening. The evidence was sufficient to warrant the jury in finding that the car was running at a high rate of speed; that the motorman suddenly discovered a heavy truck on the track in front of him; that he reached up over his head, apparently to throw off the electric current, and that this was followed by a flash of light, and the motorman called to those on the car to jump, he himself setting the example; that the car collided with the truck, but not hard enough to do any particular damage; and that the plaintiff, in following the command and example of the motorman, jumped from the car and sustained injuries for which the jury has awarded her a verdict of $3,500.

There would seem to be no question that the motorman was guilty of negligence. The result which followed showed that if he had simply remained at his post, using the appliances furnished him, there was no danger. The car might easily have been stopped without any one being injured in the least. It is true, of course, that it is not necessarily negligent for one placed in a position of great danger to do the wrong thing; but in this particular case the evidence tends strongly to show that there was no great danger to be apprehended, and that the accident to the plaintiff resulted because the motorman operated his car in such a manner as to cause the plaintiff to believe herself in danger and to act upon that belief.

It is urged on this appeal that the learned trial court erred in refusing to charge the jury:

"That even if the motorman did jump, and called out 'Jump!' and that was simply misjudgment, and there was no negligence in the operation of the car, the plaintiff cannot recover."

The court did not indicate to the jury that this was not substantially the law. He merely declined to charge upon this point, "except as charged. I have gone fully into the duty of the motorman." That is, having laid down the rule in reference to the conduct of the motorman, the court refused to go into details.

There is no objection suggested to the rule as laid down by the court, and we are of the opinion that the defendant was not entitled to this instruction. The action of the motorman in jumping, and in advising his passengers to jump, had very little to do with the question of the defendant's negligence. It was of greater importance in determining the question of contributory negligence. If the plaintiff had jumped from the car without the justification of a real or supposed danger in remaining where she was, she would not have been entitled to damages; and the fact that the motorman, who was presumed to know the danger better than an ordinary passenger, himself jumped and advised others to jump, clearly afforded a justification for the plaintiff's conduct. The court charged clearly upon this point, and no one can fairly read the charge, and question that the jury had a proper instruction upon the issues.

We are persuaded that the authorities relied upon by the defendant do not justify holding that there was error in the admission of the testimony of Dr. Nafis. The objection related to a hypothetical question, the defendant disclaiming any intention to object on the ground that the physical facts were not all stated in the question, and appears to have been based on the fact that the doctor did not see the plaintiff until some years after the accident. How this could make the question, otherwise proper, improper, we are unable to discover. He examined the plaintiff for the purpose of testifying. He was given a hypothetical question, and asked if he could state with reasonable certainty whether the condition which he found could have been produced by the accident which had been detailed in the evidence. Answering this question in the affirmative, he was asked the further question whether they could produce the result, and answered this, "Yes." No objection occurs to us which may be properly urged to the ruling of the court in admitting this testimony. All of the facts on which the question was based were in evidence, and a qualified physician might properly testify whether he could determine upon a probable cause with reasonable certainty, and the authorities controlling in this court. are not in disagreement upon this point.

The judgment and order appealed from should be affirmed, with costs.

HIRSCHBERG and RICH, JJ., concur.

BURR, J. (dissenting). Defendant requested the court to charge as follows:

"I ask your honor to charge that even if the motorman did jump, and called out 'Jump!' and that was simply misjudgment, and there was no negligence in the operation of the car, the plaintiff cannot recover."

For the refusal to charge as requested I think this judgment should be reversed. Plaintiff alleged, and sought to prove, negligence on the part of the defendant based upon two grounds: First, running the car at excessive speed; second, improperly directing plaintiff to jump from the car. There was a sharp conflict of evidence as to the former ground of liability, and the jury would have been justified, in my opinion, in finding a verdict for the defendant upon that ground. Be