I am unable to concur in the prevailing opinion. The plaintiff failed to establish his own freedom from negligence. The accident occurred in the middle of the day. The plaintiff had frequently been over this street, prior to the accident, and knew that building material ivas there piled. There was nothing to obstruct his vision or distract his attention, and it is perfectly obvious that had he exercised the care Avliich the law required of him, the collision which caused his injury would have been avoided.
To permit a jury under such circumstances to determine whether or not he was guilty of negligence was to permit them to make a finding without evidence to support it.
I vote to reverse the judgment and order a new trial.
Judgment and order affirmed, with costs. Order filed.