¶1The only question is whether on the evidence the court can say, as a matter of law, that the plaintiff was guilty of contributory negligence.
¶2The negligence charged to him is the failure to have a driver with his team. But the want of a driver did not contribute to the accident, unless the plaintiff’s team was not in the proper place and did not stop at the proper time. On these points the evidence was contradictory and therefore the case was necessarily submitted to the jury.
¶3The defendant urges that if the plaintiff had had a driver for his team, the driver might have moved the team out of the way of the defendant’s team, and thus the accident might have been prevented. But, if the plaintiff’s team was actually in its proper place, that is, in the place where it ought to have been when the defendant’s team was to pass it, he ougíit not to be charged with contributory negligence on account of the possibility that if a driver had been at hand something might have been done to prevent the accident.
¶4The judgment and order appealed from should be affirmed, with costs..
¶5Judgment affirmed.