The opinion
Crane, Ch. J.
(concurring in result). There has been so much written and said about the defense of negligence in an action of nuisance that the subject has become a mystery, smothered in verbiage.
The law in my judgment is, and should be, that except in rare cases of absolute nuisance of extreme danger, the negligence of the plaintiff contributing to the injury
may be
a bar to recovery. Whether it should be must be a question for the jury, and it is useless to attempt to define the degree of negligence which would thus be a defense. It must necessarily depend upon the circumstances. Where the plaintiff has exercised no care, or the care which the circumstances call for, and was thus injured by the nuisance, it must be that his own contributing negligence may prevent recovery. To try to distinguish between the different kinds of nuisance or the degree of nuisance, and the cases where the negligence of the plaintiff would or would not bar recovery, has led the courts into a maze.
I believe the rule to be as I have stated it, and, therefore, I cannot agree with the prevailing opinion, although I do concur in the result.