
    Francelia Hobart, as Administratrix of the Estate of Henry R. Hobart, Deceased, Appellant, v. The Town of Tully, Respondent.
    (Argued January 18, 1915;
    decided January 26, 1915.)
    
      Hobart y. Town of Tully, 159 App. Div. 938, reversed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 3, 1913, affirming a judgment in favor of defendant entered upon a dismissal by the court at a Trial Term in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant’s highway commissioner.
    
      Frank J. O’Neill for appellant.
    
      Louis L. Waters and Cleveland J. Kenyon for respondent.
   Per Curiam.

We think that on the evidence presented by the plaintiff the questions of defendant’s negligence and of the intestate’s freedom from contributory negligence were ones of fact to be decided by the jury, and that, therefore, it was error for the court to grant defendant’s motion for a nonsuit.

The judgment appealed from should be reversed and a new trial granted, costs to abide event.

■ Willard Bartlett, Ch. J., Hiscock, Miller, Cardozo and Seabury, JJ., concur; Chase and Cuddebaok, JJ., dissent on the ground that'the plaintiff failed to show affirmatively that the intestate was free from contributory negligence.

Judgment reversed, etc.  