The burden was put upon the plaintiff of showing by a preponderance of evidence that this street was a public street; that the obstruction of this street caused the injury, and of , showing the extent of the injury. Under this state of facts the only defense would seem to be that the plaintiff by gross carelessness caused the injury himself, and that would seem to be *531a defense to be pleaded and proved by the defendant. In Clifford v. Dam (81 N. Y. 52, 51) Church, Ch. J., writing in an action for a nuisance, says: “It was not even necessary in the first instance that he [plaintiff] should prove a want of contributory negligence, for the reason that the action is not founded upon negligence, but upon a wrongful act. If there was any justification for the act, it was incumbent upon the defendants to allege and prove it. If the plaintiff caused the injury himself, as if he voluntarily jumped into the hole, he could not recover, but he was bound to no special care to avoid such an accident.” In Congreue v. Smith (18 N. Y. 88) is quoted with approval the remarks of Cowen, J., in Dygert v. Schenck (23 Wend. 446), to the effect that if one be guilty of a nuisance “the utmost care to prevent mischief will not protect him if the injury happen without gross carelessness on the side of the sufferer.”
In Muller v. McKesson (13 N. Y. 195) and also in Lynch v. McNally (Id. 341) it is held that to constitute a defense in an action for damages for the bite of a vicious dog it must be established “that the person injured did some act from which it may be affirmed that he brought the injury upon himself.” The keeping of a vicious dog is a nuisance. The rule of law thus held is substantially the rule of law charged by the court, which is made by the prevailing opinion the ground of reversal. But even if the charge of the court goes a step further it is harmless, because there was no evidence in the case which would have justified the court in submitting to the jury the question of plaintiff’s carelessness or gross negligence. Upon the evidence two questions of fact only arose. First, whether defendant had created a nuisance, and, secondly, the extent of the injury. For these reasons I vote for affirmance of the judgment.
Betts, J., concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.