point urged by defendant that the violation of the city ordinance was no evidence of neglect, and involved no consequences except liability to the municipal corporation, cannot be sustained. The authority on which he relies to maintain that proposition (Brown v. Buffalo & 8. L. R. R. Co. 22 N. Y. 191) has been overruled in this same court (of Appeals) in the subsequent case, of Jetter v. N. Y. & Harlem R. R. Co. (2 Abb. Ct. App. Dec. 458; s. c. 2 Keyes, 154), and Beisegel v. N. Y. Central R. R. Co. (14 Abb. Pr. N. S. 29), in which it is held that the violation of a city ordinance, notwithstanding a penalty imposed, is some evidence of the negligence of a defendant in contributing to the injury complained of. In Jetter v. N. Y. & Harlem R. R. Co. (supra), the court say: “ It (the decision in Brown v. S. L. R. R. Co.) failed to recognize the axiomatic truth that every person, while violating an express statute (and an ordinance, if duly passed, is of like effect), is a wrong-doer, and, as such, ex necessitate negligent in the eye of the law, and every innocent party whose person is injured by the act which constitutes a violation of the statute, is entitled to a civil remedy for such injury, notwithstanding any redress the public may also have. It ignores also the principle above asserted, that every person pursuing his lawful affairs in a lawful way, has a right to assume and act upon the assumption that every other person will do the same thing.”
As to the other ground for a dismissal, that plaintiff was guilty of contributory negligence in causing the injury, by not removing to a greater distance than 125 feet, it is not sustained by any evidence upon which the court could decide, as a matter of law, upon the facts elicited by the proof (the material parts of which are above cited), that he was guilty of any such negligence oh his part. It is substantially testified to, on his behalf, that he did retire from the blast beyond the flagman, and that such is the distance (“ the law or custom ”) ordinarily deemed safe. He was, at most, bound to exercise ordinary care and prudence, while a much greater degree of care is called for on the part of the defendant in exercising so dangerous a business as blasting within the city limits or in places frequented by persons engaged in other lawful employment.
*497The question of contributory negligence, in this case, was one that should at least have been submitted to the jury.
Order dismissing the complaint should be vacated, and a new trial ordered, with costs to abide the event.
Joseph F. Daly, J., concurred.
Ordered accordingly.