Williams, ¿T. (dissenting):
The dismissal of the complaint was. improper. It was a case for the jury upon both the question of the defendant’s negligence and the absence of contributory negligence on the part of the plaintiff. It was the duty of the defendant to keep its streets in a reasonably safe condition for public travel. This truck was standing in the street in the night time, and was an obstruction which" rendered the street unsafe for public travel. It had been accustomed to stand there three or four nights in the week for three or four months before the accident. It was peculiarly dangerous in the night time, when it was difficult, by reason of the darkness, to discover its presence there and avoid it. The city was at least chargeable with constructive notice of. this obstruction, and it neglected its duty in *541permitting a truck to be stored in the street night after night for weeks and months before the accident. There can be no doubt whatever that there was at least sufficient evidence to render the question of the defendant’s negligence one of fact for the jury.
It is equally clear that the question of contributory negligence on the part of the plaintiff was one of fact for the jury. Contributory negligence is always a question for the jury, unless some act or neglect on the part of the plaintiff can be pointed out constituting contributory negligence as a matter of law. Here it is said the plaintiff was driving too rapidly; that he should have driven more deliberately ; that the law prohibited driving faster than five miles an hour, and that the plaintiff was within this provision of law. While the manner in which the plaintiff was driving and the rapidity with which he was driving and the care he was exercising, were facts which might be considered by the jury upon the question of contributory negligence, we cannot assent to the proposition that the evidence in this case, as to these facts, made the question of contributory negligence one of law for the court rather than one of' fact for the jury. Negligence is a failure to perform a legal duty and it could not be said, as a matter of law, that it was the duty of the plaintiff and his associates to drive slowly and deliberately and keep, the speed of the team below five miles an hour while on their way to a fire. The duty of firemen, when an alarm of fire is sent in,, especially in the night time, when not only property but human life may be in danger, is to get up and get out and reach the fire, not. slowly and deliberately, but hurriedly and as quickly as possible, having due regard to their own safety. A few seconds loss of time may mean large loss of property and perhaps life.
Firemen do not know how urgent the call is when the alarm comes in. The call always means come at once, come quickly, lose-no time, and the duty of firemen is to obey the call and be quick about it and not slow and deliberate. We are unwilling to assent to the proposition as a rule of law, that the duty of firemen going to a fire is to keep within the rate of speed of five miles an hour,, and to drive slowly and deliberately.
There was no proof in this case as to the precise approximate rate-of speed at which the'plaintiff was driving at the time of the accident., He says himself that he drove off from the engine house to the fire as *542fast as he could, and that at the time of the accident he wakklriving in quite a hurry, The court was not justifieddü-Fólding as matter of law that'plaintiff was guilty of contributory negligence as to the rate of spéed he was driving at thq'time of the accident. It was a question for the jury and not for the court. He knew Broome street, that it was á street of considerable width. He did not know that this double truck was being stored there during the night time. He had a right to assume, in absence of any knowledge or notice to the contrary, that the city had performed its duty of keeping the street free from dangerous obstructions in the night time, and in a reasonably safe condition for public travel. He was an experienced driver of hose carts, had a team experienced in the work, one that he knew Well, and he was attending to his driving and doing the best he could apparently to get to the fire as quickly as possible in the performance of his duty. The court was not justified, upon the evidence given in the case, in- holding as a matter of law, that he was guilty of contributory negligence. i It was clearly a question for the jury. He was bound to the exercise of such care, under all the circumstances of the case,- as an ordinarily careful and prudent person would have exercised. Whether he did exercise such care or not was a question for the jury and not for the court.
There are no other questions raised in the case of sufficient merit or importance to call for a reference to them in this opinion.
The court erred in. dismissing the complaint. The judgment and order appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide event.
O’Brien, J., concurred.
Judgment affirmed, with costs.