Walter Ranftle, Respondent, v. City Athletic Club, Appellant, 20 A.D.2d 716

— In an action to recover damages for personal injury sustained in a fall upon a stairway, the defendant appeals from a judgment of the Supreme Court, Queens County, entered March 11, 1963 after trial upon a jury’s verdict in the plaintiff’s favor. Judgment affirmed, with costs. Plaintiff, a deliveryman, was injured while descending a dark, exterior stairway leading from the sidewalk to the basement in a building owned by the defendant.

The evidence, both oral and photographic, discloses that the third and fourth steps below the level of the sidewalk were “ radial ” in design; that they were of extremely shallow width at the left-hand side of the stairwell; and that they fanned out into an arc of broader dimensions on the right-hand side of the stairwell. At the time of the accident the stairway was neither illuminated nor equipped with a handrail to guide a person using such stairway.

In our opinion, the record discloses evidence from which a jury could reasonably conclude that the stairway, as constructed and maintained, constituted a condition of unsusual hazard or peculiar danger so as to impose upon the defendant the duty of taking proper precautions to prevent an accident (cf. Wayman v. Fulder, 282 N. Y. 730; Galligan v. Druidan Real Estate Co., 266 N. Y. 445; Gilclier v. McNulty Bros. Realty Co., 269 App. Div. 844, affd. 295 N. Y. 743). A jury question was, therefore, presented as to whether the defendant violated the common-law duty which it owed to the plaintiff as a business invitee.

We are also of the opinion that the issue of plaintiff’s freedom from contributory negligence was properly submitted to the jury as a question of fact (Kallus v. Wallach, 19 A D 2d 842). With respect to the claimed errors in the charge: In the absence of an exception or request, the Trial Justice’s failure to make the charge more explicit cannot be regarded as reversible error (Brown v. Du Frey, 1 N Y 2d 190; Harrington v. Kedern Realty Corp., 13 A D 2d 1027; cf. CPLR 4017, 5501, subd. [a], par. 3). Beldock, P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.