¶1I cannot agree with the conclusion reached by the majority of the court. At the close of the.plain tiff’s evidence a motion, to dismiss the complaint was made and granted, to which an exception was taken ; and thus we are brought to a consideration as to whether, upon the inferences most favorable to the plaintiff to. be drawn from such evidence, a prima fade case was made out. This being an action- to recover damage for the death of the plaintiff’s intestate, alleged to have been caused by defendant’s negligence, there is thus presented the usual questions as to whether a prima faeie case was made out tending to show that the death was caused solely by the defendant’s negligence, and incidental thereto whether the deceased was herself free from contributory negligence. The disposition to " be made of these questions necessarily requires a review, of the evidence.
¶2The testimony of Mrs. Delia Sullivan, who had charge of the *421hiring of help at the hotel, shows that the deceased was directed to take the servants’ elevator to the roof, where the cleaning girls’ room was, and to inquire of the elevator man, or of any one whom she should meet, the location of Mrs. Sullivan’s room, or of the room the cleaning girl was to occupy, and was told that she would, be shown where to go. The deceased went to the hotel about ten-thirty p. m., went up in the servants’ elevator, and was soon after-wards found dead at the bottom of the shaft. The skylight of the shaft was under Mrs. Sullivan’s window. Mrs. Sullivan testified that, although there were no lights provided on the roof and no light over the shaft, there was sufficient light from the windows of the rooms and from the air shaft to show the presence of the skylight; but a policeman, who went up on the roof on .the night the accident occurred, says that such light as sifted through the windows was insufficient, and that he struck matches to find the skylight. It appears without dispute that the shaft through which the deceased ’ fell was illegally constructed. It extended only six or eight inches above the roof, whereas the law requires (Laws of 1887, .chap. 566, amending § 487 of chap: 410 of the Laws of 1882) that such shafts be carried up at least three and a half feet above the roof. That the' deceased was following directions given her, with no knowledge of the presence of the shaft, and that there was insufficient light provided, are matters of fair inference. Such an illegal structure, having no safeguards, upon a frequented roof, and left at night with only such inconstant and unreliable light as came from adjoining windows and doors, or from the shaft itself, presents sufficient evidence, taken in connection with the directions given by Mrs. Sullivan, from which the jury could infer absence of contributory negligence.
¶3It has been held repeatedly that absence of contributory negligence, although to be affirmatively established by the plaintiff, may be inferred from circumstances without direct evidence. In many eases where judgments for the plaintiff have been upheld there was no eye-witness of the accident. (Johnson v. H. R. R. Co., 20 N. Y. 65; Noble v. N. Y. C. & H. R. R. R. Co., 20 App. Div. 40.) Thus, in the Nolle case, the deceased was run over on a foggy night by a train running very rapidly, at a place where other cars might easily have obstructed his view; and it was held that freedom from *422contributory negligence might properly be inferred. In the Johnsoncase, the intestate ivas run over by an unlighted horse car in a city street, and it was held that absence of any fault on the part of the plaintiff might be inferred. In neither case did any one see the accident.. All that is necessary is that the character of the defendant’s negligence, taken in connection with all the surrounding circumstances, shall fairly point to the inference that the injured party was not. to blame. (Tolman v. S. & N. Y. R. R. Co., 98 N. Y. 198.)
¶4I think that the plaintiff has stood that test, and should have been allowed to go to the jury on both questions, and that, therefore, the judgment dismissing the complaint should be reversed.
¶5Barrett, J., concurred.
¶6Judgment affirmed, with costs.