(dissenting).:
The complaint here was dismissed upon the plaintiff’s opening. ■From this complaint andi opening the following facts appear, of are fairly deducible:
•The action was brought to recover.damages from the city because *155of its alleged negligence in so restricting a driveway from one of its ■streets to the premises of an abutting owner as to cause the death of plaintiff’s intestate. The driveway in question led from Eleventh avenue, in the city of New York, at a point near the southwest corner of that avenue and Seventeenth street, into the premises of the Consolidated Gas Company. This driveway had been used for many years by the Consolidated Gas Company, and its customers, as .a passageway from the street, to reach certain platform scales of'the company upon which loaded trucks, driven there for that purpose, could be weighed. It had an entrance also from Thirteenth avenue, but it appears that there was a slight grade from the scales to Eleventh avenue so that drivers who desired to reach these scales with their loaded trucks found it difficult to enter from Eleventh avenue, and their custom was to drive in from Thirteenth avenue and out over the down grade, across the sidewalk on Eleventh avenue and across the curb into the street. The driveway passed between two small brick buildings before it reached the sidewalk on Eleventh avenue, the scales being situated between these two buildings. As shown by photographs and a diagram produced by plaintiff’s counsel and accepted as part of his opening statement, this driveway was ten feet and ten inches in width. An iron bridge had been placed from the curb to the street at Eleventh avenue to enable trucks to pass into the street without bumping down into the gutter. The extreme width of this bridge was ten feet and nine inches. The actual available width of the driveway at the curbstone, however, was only eight feet and one inch. This difference in width was caused by the fact that the city had placed what is called a hub-stone at a point on the line of the curb so that its southerly side was two feet and one inch south of the north end of the iron bridge, thus cutting off that amount of space from the driveway on that side, while on the other or south side, the city had placed a large pile of heavy stones, several feet high, which extended from a point on the sidewalk almost up to the. building line, out over the curb, and so close to the driveway as to limit it in width at the curb to eight feet and one inch as already stated. In addition, the jagged edges of some of these stones projected a few inches out into the driveway. The extreme width of the truck, which was being driven by the plaintiff’s intestate, was seven feet from the outside *156of one tire to the outside of the opposite tire. It was further stated that the hubs projected beyond the tires a distance of four or five inches on either side.
Plaintiff’s intestate had driven a load of scrap iron in from Thirteenth avenue to the scales and had it weighed. He then drove out-to Eleventh avenue, down the slight grade, with the reins in his-hands, looking at his horses and keeping them well in control, when suddenly the pole and the horses swung a little to the north, which was the side toward the hubstone; the front wheel of the truck struck the hubstone and he was thrown to the ground, receiving injuries from which he subsequently died. The nonsuit seems to-have proceeded upon the theory that, inasmuch as the hubstone was not of itself a nuisance, the case fell within the general rule that a municipality cannot be held liable for injuries occasioned by driving against such structures. It may be at once conceded that the city acted rightfully, ,or at least did not act wrongfully in placing the hubstone in this locality, and if the pile of stones had not been placed by it on the other side of the driveway it could hot have been held for an accident resulting merely from contact with the hubstone. Where, however, after thus restricting the driveway on one side by a lawful structure, the city further restricted it upon the other side in the manner indicated, it seems to me that .a question of negligence was fairly presented for" the consideration of the jury. . By placing the pile of stones where they were, the available width of the driveway at the curb was limited to eight feet and one inch". The width of the truck driven by plaintiff’s intestate was'seven feet from the outside of the tire on one side td the outside of the tire on the opposite side. This left at the point where the tires met the driveway a space of only thirteen inches, or six and one-half "inches outside of either tire, within which the truck could he driven to avoid actual contact with the pile of stones on the one-hand or the hubstone on the other. Even this small space was not all available, as it was narrowed for actual use by the fact that on one side, at least, the driver had to allow four or five inches for the-hub of his truck, which projected that distance from the outside of the tire and upon the other side for the jagged edges of the stones which projected somewhat into the driveway. The- space left after all these deductions was exceedingly narrow. It is difficult to see, *157therefore, how it can be held, as a matter of law, that the driveway was not improperly restricted.
There can be no doubt that that portion of the driveway which ■crosses the sidewalk on Eleventh avenue is a part of the public street. .Nor can there be any doubt as to the duty of the city to keep it reasonably safe and free from obstruction. Indeed, the city made no contention to the contrary on its motion to dismiss the complaint. In Dougherty v. The Village of Horseheads (159 N. Y. 154) the question of width was adverted to as an important consideration. It there appeared that a larger boulder had been placed at the end of a grass plot in an uncurbed village street, between the sidewalk and the street driveway, and at the edge of a private driveway to the'abutting premises, to protect the grass plot and a tree thereon from being driven upon and to confíne teams to the two driveways. It was held that the municipal corporation was not liable for an accident to the plaintiff caused by a collision of his vehicle with this boulder, even though the boulder was covered with snow at the time, the court, however, observing that “Both driveways were of ample width, the grade was substantially level, and there was no difficulty in reaching the traveled portion of the street without running against this stone which marked the passageway for teams.”
Again, ordinances 249 ánd 250 of the ordinances of the city of New York provide for the construction of just such driveways as the one in question. They indicate the manner in which they must be constructed, paved and repaired, and provide, further, that if the .abutting owner fails in his duty in those respects, the proper city official can have the work done and compel the abutting owner to pay for it. In other words, the city recognizes its own liability for the continued good condition of these private driveways. If it permits them to be built and used, and sees to it that they are kept in good repair, how can it claim immunity for its own acts in •encroaching upon them and rendering them unsafe for the v'ery persons for whom they are constructed ?
The question of contributory negligence was also for the jury. Upon the statement of plaintiff’s counsel the plaintiff’s intestate was using all necessary care and was rightfully on the premises. At the most there could only then be a question of fact as to whether or *158not an ordinarily prudent man under all the circumstances, including that of the unusual width of .the trucks, would have been justified in using the driveway as plaintiff’s intestate used it'. It seems-to me that the court, in affirming this judgment, is running counter to the principié enunciated in Schafer v. The Mayor (154 N. Y. 466).
I am in favor of a reversal and new trial.
Judgment and order affirmed, with costs.