
    Christina Kaucher, as Administratrix, etc., of Charles F. Kaucher, Deceased, Respondent, v. The City of New York, Appellant.
    First Department,
    April 21, 1911.
    Municipal corporations — negligence — fall from, vehicle — uneven pavement — contributory negligence.
    There can be no recovery against a city for the death of a driver who fell from the high seat of a brewery wagon owing to a jolt caused by a convex ridge in the pavement which had not been properly replaced, if the evidence shows that, having started his team, he fell before he was securely seated, for there is a failure to show freedom from contributory negligence.
    Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of May, 1910, upon the verdict of a jury for $3,000, and also from an order, entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.
    
      Loyal Leale, for the appellant.
    
      Sydney A. Syme, for the respondent.
   Miller, J.:

The plaintiff’s intestate fell from a high seat in the front of the brewery wagon which he was employed to drive, and received injuries resulting in his death. He had left his horses standing by the curb in one of the defendant’s streets, and in undertaking to get upon the seat on his return he had started up the team just as, or before, he had succeeded jn doing so. The horses had taken but a few steps when the wagon wheels passed over an uneven surface and he fell, or was thrown off, presumably because of the jolt of the wagon. * The defect complained of is described as an uneven, convex surface, three feet wide, six or seven feet long across the street, and six or seven inches at the highest point above the natural level of the street. An opening had evidently been made in the pavement and carelessly filled up, the paving blocks being thrown back indiscriminately and not put back in place.

It may be assumed ¡that the defendant was- negligent, but the evidence falls short of proving freedom from contributory negligence on the part ¡of the said intestate. Any uneven surface might cause a jolt sufficient to throw a person from the high seat of a brewery ¡wagon such as is-commonly observed on the streets, and a person in that position needs to be attentive and firmly in his seat. | According.to the evidence of the only witness for the plaintiff, who saw the accident, it is doubtful whether .the deceased was securely seated before he started the team. She testified: PThe man was seated, partly seated; * * .* he had fully gotten into-the seat and was leaning forward.” According-to the evidence of the defendant’s witnesses he fell off while ¡attempting to gain the seat. At any fate it is not likely thai; he would have fallen if securely in his seat and attentive to vjhere he was driving,, and it cannot be assumed in the absence of proof that he was exercising proper '.care. j

The judgment and oijder should be reversed and a new trial ordered, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Judgment and order j revefsed and new trial ordered, with costs to appellant to abide event.  