In this case the plaintiff has recovered against the defendant damages for the loss of a horse by breaking through the planking on a pier, and thereby injuring the horse so that he was killed. Upon the trial, the plaintiff was examined as a witness, and testified that he had known the pier for eighteen years; that it was out of repair four or five years before the accident; that he considered it dangerous for a year before that time; that it was dangerous to go on it in certain places; that it was dangerous for a horse to go on it in some places; that the whole dock was in bad repair; that the spot where the horse broke through had not been patched, and appeared in a condition worn out, to a certain extent, but appeared safe to go over on that spot; that not any of the dock appeared in good condition, and he considered the most of the pier unsafe.
The defendant requested the court to charge the jury that if they found, from the evidence, that the pier was dangerous to drive over, and the plaintiff knew it, he *452could not recover. This was refused, and the defendant excepted.
[First Department, General Term, at New York, February 7, 1871.I do not see how, with this evidence from the plaintiff, the court could avoid submitting to the jury the question whether the plaintiff by his act contributed to the accident, and if he did, to instruct the jury that he could not recover. A pier, like any other public place, must be kept in repair, and if it is not, and damage ensues, the party who should keep it in repair is liable for his negligence; but if persons using such pier know that it is unsafe for use, and with that knowledge use it, and sustain loss, it seems clear that the doctrine, that one who contributes to an injury cannot recover for such injury, applies. It never could be held, that if the plaintiff had been told, at the time, that the pier would fall down if his horse went on it, and notwithstanding he persisted in driving on the pier, and it fell, he could recover for the injury. The same rule applies if it appears that the plaintiff knew it was unsafe and still used it.
The question of the plaintiff'’s negligence should have been submitted to the jury, and the learned justice erred in his refusal to do so.
The verdict should be set aside, and a new trial ordered; costs to abide the event.
Ingraham, P, J., and Cardozo and Geo. G. Barnard, Justices.]