I entirely, agree with the views expressed in the opinion of Mr. Justice Barrett, respecting the relation of the city of Hew York to the projected thoroughfare called One Hundred and Twenty-seventh street, and the responsibility the city was under to ■ keep that projected thoroughfare, which it permitted to. be used as a street, in reasonably safe condition; and I also agree that leaving the manhole with the cover projecting, as it was, above the surface of the roadway, was the negligent allowance of an obstruction in a thoroughfare which the city permitted to be used as a street and for general street purposes. But I do not agree with the conclusion that the cause should have been left to the jury.
It is quite plain that the plaintiff failed to show affirmatively that the decedent Franz Schafer was free from contributory negligence in connection with the accident which resulted in his death; and it was incumbent upon the plaintiff in this action to make that proof. (Weston v. City of Troy, 139 N. Y. 281; Whalen v. Citizens’ Gas Light Co., 151 id. 70; N. Y. L. J., Dec. 4, 1896.) In making it the circumstances of the case may be shown, and it undoubtedly may be in many cases for the jury to infer from those circumstances that the sufferer from the accident was free from contributory negligence, and where two inferences may be drawn' from the testimony or from the circumstances appearing in evidence, the question is for the jury. (Chisholm v. State of N. Y., 141 N. Y. 246.) But in this case the circumstances are utterly insufficient to allow an inference that the decedent was free from negligence contributing to or inducing the accident. On the contrary, they all tend to show that, not only was he not free from negligence, but that he *386wás affirmatively guilty of negligence in the commission of the act" ■or series bf acts which led to his death.
On the day on which the accident occurred the decedent was ■driving a- heavy truck, drawn by two large horses, and upon the truck waá a load of from sixty-five to eighty filled beer kegs. He was on the way to deliver the truck load at a saloon, the approach to which was through One Hundred and Twenty-seventh street. It-was nejcessary for him to cross á curbstone, which the witnesses ■speak of ¡as forming the gutter on the east side of Second avenue. This curbstone extended upward, a distance variously stated at from two and ia half to ten inches above the level of Second avenue. To the eastward and in the roadway of the projected One Hundred and Twenty-seventh street was the manhole referred to. It was located fiineteen feet and .two inches east of the curbstone, a distance not greater if as great- as the length of the team and truck driven by. the decedent. The decedent knew of the situation so far as the curbstone is concerned, and the manhole projecting above the surface of the street was plainly in sight. Knowing this situation,.he drove his horses at a fast trot or gallop, turned them towards. One Hundred and Twenty-seventh street, struck- the curb, necessarily striking it twice, that is to say, both with the front wheels and with the hind wheels, and then seems to have struck the' manhole, andlwe must assume from the evidence that he fell, and was-run over after striking the manhole. That the necessary effect of striking the obstruction of the curbstone with this heavily laden truck would be to jar it violently cannot be doubted, and it would seem to be of itself an act of pure- recklessness to undertake to pass such an obstruction in such a way, and the effect of the jarring or oscillation of the truck upon the horses would be such that they could not draw the vehicle in a direct line and it might be thrown against the. obstruction which the driver would not be able to avoid. This occurrence cannot be so split up as to make the accident attributable only to the .existence of the manhole. There was the necessity of passing.two obstructions within a space of twenty, feet, that is to say, withm the length, or less than the length, of the team and truck that was to be taken past these .obstructions, and it cannot be said that •■the decedent is shown to have been free from negligence; when he Attempted to pass the first obstruction driving his horses *387. over it at a fast trot or gallop when there was another obstruction plainly in sight and so close that before the effect of striking against the first obstruction was overcome he was exposed to the risk of driving against the second one.
I think it is plain from the nature of this accident and the circumstances under which it happened that the court below was right in dismissing the complaint on the ground that freedom from contributory negligence on the part of the decedent was not shown and that the judgment should be affirmed, with costs.
Van Brunt, P. J., and Williams, J., concurred; Rumsey, J., concurred in result; Barrett, J., dissented.