
    Arthur Lambert, Appellant, v. Westchester Electric Railroad Company, Respondent.
    Second Department,
    October 12, 1906.
    Negligence—fireman injured by collision with, street. railway pole — when negligence in maintaining pple near driveway of fire patrol question for jury.
    In an action by a volunteer fireman who was injured through a collision with a street railway pole while climbing into'the fire patrol wagon by means of a step on the side of the wagon, as the wagon was turning from the driveway of the engine-house into the main street, it is error to dismiss the complaint where it appears that a pole inspector of the defendant company had notified it of ■ similar collisions in the past and that subsequent to such notice a new iron pole had been put in place several inches nearer to the driveway than the old pole. The question whether the plaintiff, who knew of the location of the pole, was guilty of contributory negligence was also for the jury.
    Jerks, J., dissented.
    Appeal by the plaintiff, Arthur Lambert, from .a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 7th day of August, 1905, upon the dismissal of .the complaint by direction of the court after a trial at the Westchester Trial Term, and also from an order entered in said clerk’s office ’on the 10th day of August,. 1905., denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Sydney A. Syme, for the appellant.
    
      Edward D. O'Brien [Henry A. Robinson with him on the brief], for the respondent.
   Rich, J.:

This appeal is taken from a judgment entered upon the dismissal of the complaint, and from an order denying plaintiff’s motion for a new trial made upon the minutes, and the only question presented is whether the case should have been submitted to the jury.

The plaintiff was a member of the volunteer tire department of the city of Mount Vernon, belonging to a company called “ The Fire Patrol Company,” which occupied, with its apparatus, the north portion of a building devoted to fire department purposes, and housing three companies. This company used a wagon between four and five feet in width, drawn by two horses, having an entrance at the.rear and one on each side between the front and rear wheels, three steps furnishing the means of getting into the wagon from the ground. It was permissible, although not obligatory, for members of the company when a fire alarm was sounded to-ride on this wagon to and .from the fire. The front of the building so occupied was sixteen feet from the curb of the street on which it fronted. Between it and the curb a flagstone sidewalk four feet in , width crossed the front, the inside edge of which was eight feet from the front of the building and the outer edge four feet from the curb. The entrance to the building used for running the wagon in and out was seven feet and four inches wide in the clear. From, this doorway to the curb was a cobblestone driveway nine feet seven and one-lialf inches wide. For a distance from the north line of the driveway south, twelve feet and a half, the curb had been cut down to permit the more easy passage of the wagon over it. Commencing at this point and extending south four feet two and one-lialf inches, the curb had not been cut down and was of a height of six inches above the pavement. Back of this piece of curb the defendant formerly maintained a lattice-work pole carrying its wires. The fire patrol wagon had collided with this pole on 'one or more occasions when leaving the building to go to a fire. In the latter part of June, 1901, the pole inspector of the defendant reported to the president of the company that this pole was decayed, bent towards the street, and that there was danger of the fire apparatus colliding with it in leaving the building. Prior to plaintiff’s injury the defendant removed the lattice-work pole and replaced it with a round iron pole six inches in diameter, set in cement and placed from seven to eight inches north of the location of the former pole. From the north side of the new pole to the south side of the driveway was three feet six and three-eighths inches; the distance between the pole and the north side of the driveway was thirteen feet- one and seven-eighths inches. Between eight and nine o’clock on the evening of October 1, 1901, the plaintiff was on the second floor of the building occupied by his company when an alarm of fire was sounded. He ran to the ground floor; as he reached the street the wagon was just being driven out of the house. He jumped upon the steps, composing the entrance to the wagon on its right side (the side nearest the pole of defendant referred to), and while upon the steps, the wagon was driven so near the pole that his body was caught between it and the side of the wagon, causing the injuries for which he seeks to recover in this action. The plaintiff testified that he knew and was familiar with the location of the pole.

' At .the close of the evidence the learned trial justice granted defendant’s motion for a nonsuit on the grounds: First, that the plaintiff had failed to establish negligence on the part of the defendant, and, second, that there was not sufficient evidence' to warrant the submission of the case to the jury of thé plaintiff’s freedom from contributory negligence. The action is brought ■ upon the theory that the defendant was" negligent in placing and maintaining its pole in an improper position and place in the street. The defendant being incorporated and having been given by the municipality the right to erect and maintain its poles in the streets for the proper conduct of its business, the location of its poles cannot be held to be a nuisance or a wrongful obstruction of the street. And yet we think there was evidence in the case from which a jury might be warranted in finding defendant negligent in placing the pole in such close proximity to the driveway over which it ought to have known the vehicles of' the fire department were frequently driven with great rapidity. The degree of care required of, the defendant was that of ordinary prudence' and forethought. Did it exercise this care % We think the question is one of fact and ought to have been •answered by the jury.

We are also of opinion that the question of plaintiff’s freedom from contributory negligence ought to have been submitted to the jnry-

The judgment must, therefore, be reversed and a new trial granted, costs to abide the event.

", Hirschberg, P. J., Hooker and Miller, JJ., concurred; Jenks, J., dissented.

Judgment and order reversed and new trial granted, costs to abide the event. - . - '  