Opinion
June, 1906.
John J. Delany (Theodore Connoly and Thomas F. Noonan, of counsel), for respondent City of New York.
Frederick E. Fishel, for respondent Silverson.
Joseph E. Cavanaugh, for appellant.
This case is one in which a recovery is sought for injuries sustained through alleged negligence of defendants. The plaintiff was riding in a carriage driven by a Dr. Flynn, going northwardly along Eighth avenue, in this city. The night was dark and it was raining. As they approached One Hundred and Thirtieth street and when within five to eight feet of the obstruction with which they collided, the plaintiff, who, according to her story, was looking out all the time, saw the pile of material on the roadway and called to her companion, warning him of its existence. She had no control of either driver or horse, and whatever negligence Dr. Flynn may have been guilty of cannot be imputed to her. There is a disputed question of fact as to whether there were any lights about the obstruction and, upon the whole, I am of the opinion that the question of the appellants being guilty of any act of contributory negligence should have been left to the jury.
GILDERSLEEVE and LEVENTRITT, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.