Although I have always been consistently opposed to the writing and publication of dissenting opinions which cannot influence decisions, I am constrained by the peculiar circumstances of this case to record the reasons for my dissent from the decision about to be made.
The action was brought to recover damages for personal injuries sustained by the plaintiff. Upon pleadings which fairly state the issues of defendant's alleged negligence and the plaintiff's alleged contributory negligence, the case was brought to trial. At the close of the evidence for the plaintiff the learned counsel for the defendant moved to dismiss the complaint upon the grounds that the plaintiff had failed to establish the defendant's negligence and his own freedom from contributory negligence. The court reserved its decision until the close of all the evidence, when the motion was renewed and denied. The case went to the jury and the plaintiff was given a verdict. From the judgment entered there was an appeal to the Appellate Division which resulted in an affirmance with one dissenting vote. The case is now before us upon the defendant's appeal and the sole question to be decided is whether the evidence bearing upon the defendant's alleged negligence and the plaintiff's alleged contributory negligence, presented issues of fact for submission to a jury, or issues of law to be decided by the court.
Thus far five judges have held that the evidence presents questions of fact for the arbitrament of a jury. Three judges of this court are of the same opinion. When the decision of this court goes down, therefore, eight judges will have held *Page 86 that the case was properly submitted to a jury, and four will have decided that the evidence of defendant's negligence is so weak and the evidence of plaintiff's contributory negligence is so strong, that both of these issues should be decided against the plaintiff as matter of law.
While this disparity in number does not create a presumption that the majority are right, it does emphasize the fact that judges, who of all men are supposed to be intelligent and reasonable, are sharply disagreeing over the question whether certain evidence presents a state of facts from which intelligent and reasonable laymen can draw divergent conclusions. That is a situation which furnishes the precise test which, in actions of this class, has always been applied in differentiating a case for the jury from one for the court. We have often said that when reasonable and intelligent men may differ as to what facts have been established or may draw antagonistic inferences from undisputed facts, the case is one for a jury. (Smith v. N.Y.C. H.R.R.R. Co., 177 N.Y. 224, 229, and cases there cited.) For the purpose of demonstrating that this case was properly for the jury I shall briefly refer to the controlling facts.
The plaintiff, a photographer, was engaged in taking a picture of a building in Washington street in the city of New York. He placed his camera on the edge of the sidewalk so that in looking through the lens to get the proper focus he stood upon the curb with both feet or with one foot in the gutter. Before covering his head with the cloth or mantle which is a familiar part of a photographer's outfit, he looked about him and saw a city ash cart standing at a distance of one hundred feet or one hundred and fifty feet from the point where his camera was planted. The driver of the cart and another city employee stood by the cart engaged in conversation. The plaintiff covered his head and proceeded to focus his camera. While thus engaged he was struck by some portion of the wheel of the ash cart, and sustained the injuries of which he complains. The horse drawing the ash cart was unattended by the driver, and it is undisputed that the *Page 87 horse was started by the driver. The only conflict of evidence was whether the horse was thus started from a point one hundred or one hundred and fifty feet distant from the plaintiff's camera, or only fifty feet distant therefrom, and whether the driver was then actually engaged in gathering ashes from houses in that part of the street, or permitted his horse to move unattended from the place where the driver and another city employee are said to have been engaged in conversation.
Upon these facts the first question is whether there was evidence upon which a jury could base a finding of negligence against the defendant. As the plaintiff is entitled to the most favorable view which the jury might have taken of the evidence, the question whether the defendant was negligent or not must be considered upon the assumption that the ash cart stood one hundred or one hundred and fifty feet from the plaintiff's camera, and that the horse attached to the cart was permitted by the driver to move unattended and unguided along the street to the place where the plaintiff was struck. One can easily imagine circumstances in which such conduct on the part of a driver would be negligence as a matter of law. It may be conceded that the facts of this case would not warrant such a conclusion, but I think the evidence as to the defendant's negligence clearly presented a question for the jury.
It is argued, however, that the plaintiff was guilty of contributory negligence, and I suppose that is to be the ground upon which the judgment of the Appellate Division is to be reversed. In considering that question we must, of course, ascertain what the plaintiff did or omitted to do that constitutes negligence on his part. No one will deny that he was lawfully upon the sidewalk for a lawful purpose. He had the right to be employed by the owner of the building for the purpose of making a photograph, and that included the right to do whatever was necessary and proper in the completion of his task. It is said that he was negligent in covering his head with the cloth which was an indispensable *Page 88 part of his equipment. It would be just as reasonable to argue that a surveyor, engaged in his lawful work, would be guilty of negligence in turning his back upon a portion of a street while he was looking through his instrument in the opposite direction; or that a lineman employed in stringing wires would be negligent because he pulled backward instead of turning around and pulling forward; or that a person engaged in moving a push cart in the street would be guilty of negligence because he was facing the direction in which he was pushing the cart instead of walking backwards. There may be instances, of course, in which persons engaged in lawful street occupations may be so affirmatively careless as to preclude them, as matter of law, from recovering for injuries which they sustain through the negligence of others. The case at bar does not belong in that category. Here the question is whether it was negligence per se for the plaintiff to plant his camera on the edge of the sidewalk and cover his head while he was getting a proper focus for a picture. When he did that he looked and saw the defendant's ash cart at least a hundred feet away, with the driver in a position which gave the plaintiff the right to assume that the horse would not be started except under proper guidance and control. In these circumstances, I submit, it was a question for the jury whether the plaintiff was guilty of negligence which contributed to the accident that caused his injuries.
The judgment of the Appellate Division should be affirmed, with costs.
CULLEN, Ch. J., GRAY and COLLIN, JJ., concur with WILLARD BARTLETT, J.; HISCOCK and CHASE, JJ., concur with WERNER, J.
Judgment reversed, etc. *Page 89