(dissenting). The question in this case is whether the trial court was justified in submitting to the jury the question as to the alleged contributory negligence of plaintiff’s intestate or his servant.
Judge Denio, in Johnson v. Railroad Co., 20 N. Y. 73, says:
“The true rule, in my opinion, is this: The jury must eventually be satisfied that the plaintiff did not by any negligence of his own contribute to the injury. The evidence to establish this may consist in that offered to show the nature or cause of the accident, or in any other competent proof. To cony a case to the jury, the evidence on the part of the plaintiff must be such as, if believed, would authorize them to find that the injury was occasioned solely by the negligence of the defendant. It is not absolutely essential that the *974plaintiff should give any affirmative proof touching his own conduct on the occasion of the accident.”
'In Chisholm v. State, 141 N. Y. 246-249, 36 N. E. 184, Judge Bartlett remarks:
“Although it is a fundamental principle that the absence of negligence on the part of the plaintiff, contributing to the injury, must be affirmatively shown by him, yet this may be done by direct proof or by circumstances. Hart v. Bridge Co., 80 N. Y. 622; Hoffman v. Union Ferry Co., 47 N. Y. 176-186; Button v. Railroad Co., 18 N. Y. 248. If different conclusions can be drawn from these circumstances, it is a question for the jury, or, in this case, for the commissioners. * * * In Harris v. Uebelhoer, 75 N. Y., at page 175, Chief Judge Folger remarked: ‘A public highway may be used in the darkest night,—a night so dark as that the keenest and clearest vision might not be able to detect obstacles and defects. In such a case, any man traveling upon it is practically a blind man. One passing along a sidewalk has a right to presume it is safe.’ McGuire v. Spence, 91 N. Y. 303; Weed v. Village of Ballston, 76 N. Y. 329; Brusso v. Buffalo, 90 N. Y. 679.”
In this case, Cameron, the driver of plaintiffs intestate, was sworn, and stated all the facts which occurred at the time of his death. The accident happened on a dark night,—so dark that Cameron could not see the roadway, and was compelled to allow the horses to choose their way. He could only see the fence on each side. I infer from the evidence that the team was going on a walk. The horses had been oút of the traveled part of the road twice shortly before they reached the bridge, but they were in the roadway when they actually came to it. It is to be inferred from the evidence that, if the planks had been properly placed on the bridge, the accident would not have happened, as both wheels were on the planks when the wagon reached it.
The question before the jury was, did the evidence, by any construction that could be fairly placed upon it, show the absence of contributory negligence on the part of Cameron. As we have seen, he had a right to presume the bridge safe. If his testimony was to be relied on, he was driving slowly along a road with which he was not familiar, on a night so dark that he could not see the roadway, allowing the horses to choose their way, when his wagon was overturned by a defect in a bridge on the highway. It is difficult to see what Cameron could have done that he did not do. Not being able to see the roadway, as Judge Folger remarked in Harris v. Uebeilhoer, supra, he was “practically a blind man.” He could not guide the horses in any other way than he testified he did,—when he found by the pitching of the wagon they were out of the road, he turned them back into it. It may be that his safest course, under the circumstances, was the one he adopted,—to allow the horses to pick their way. I cannot understand how he could have taken any other course, unless he had alighted from the wagon and led the horses. The fact that the horses, before they came to the bridge, were out of the roadway twice, does not necessarily show negligence on the part of the driver. The night was so dark that he could not see the roadway, and experience teaches us that, under such circumstances, such an occurrence is likely to happen to the most careful driver. The circumstances surrounding the death of *975plaintiff’s intestate being fully shown, it seems to me, that whether Cameron did or did not do all that a careful driver should have done under the circumstances was a question of fact.
As Judge Allen said in Massoth v. Canal Co., 64 N. Y. 529:
“The question of contributory negligence in cases of this character is ordinarily one of fact for the jury. It depends usually upon a variety of circumstances, and upon inferences from the facts proved, calling for the exercise of practical knowledge and experience, and is peculiarly within the province of a jury of twelve men.”
And as Judge Bartlett remarked in Chisholm v. State, supra:
“If different conclusions can be drawn from these circumstances, it is a question for the jury.”
I regard the case as a close and doubtful one, but am inclined to believe that the trial court properly submitted the questions involved to the jury.