Camacho v. Tabak , 234 N.Y.S.2d 450 ( 1962 )

Memorandum by the Court.

Judgment for defendant on dismissal of the complaint affirmed, with costs. The plaintiff, a vistor to a tenant in defendant’s multiple dwelling, arrived after dark. He found the building in darkness due to an electrical failure. He managed to ascend the stairs and find the apartment he intended to visit. Here also there was no electric light, and the room was lit by candles. The condition continued and was unchanged when he left. He sought no assistance from his host and, in attempting to descend the stairs, he fell. Giving him the best inference that the proof allows, we assume that he fell because of the darkness. We believe the dismissal to have been proper. Plaintiff was perforce aware of the situation as regards lighting when he ascended the stairs. He knew that unless conditions changed it would be the same when he left. When he elected to go he knew what he was going to encounter. While it was not unreasonable for him to leave the apartment, he assumed a certain risk. He knew when he went up the stairs that he would soon be coming down and that unless the current was restored in the interim he would be facing whatever danger the lack of light entailed. With full knowledge of the peril he elected to leave.