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.