The opinion
O’Brien, J. (dissenting):
I dissent. To hold that the plaintiff was guilty of contributory negligence as matter of law, it must be presumed that he knew on the day of the accident that the dumb waiter was defective and out ■of repair. He could not see it that day for the reason that it was up three stories in a shaft and he was below. Whether he was" guilty of contributory negligence, therefore,, depends upon whether the presumption is to be drawn that, as matter of law, he must have known on the day of the accident that the condition of the dumb *391 waiter was the same then as when he saw it on his prior visits to the house. Was he chargeable with knowledge that the defendant, after notice, had neglected and refused to perform his duty to repair it ? The plaintiff, as stated, could not see its condition on that day, and even if he was bound to recall the defects which he saw on his former visits, was he bound to presume,, as matter of law, that these had not been removed? I think not, and, therefore, dissent. Under the circumstances, I think that the question of contributory negligence was purely one of fact.
Judgment affirmed, with costs.