The defendant was bound to exercise ordinary care and prudence in his use of the highway as a traveller, to avoid injury to any one in the rightful use of the way. Any exercise of care and prudence less than this would be negligence, for which the defendant would be liable to any one injured thereby and not himself in fault. Whether the defendant exercised such care and prudence was a question of fact which the referee has found adversely to the defendant.
The plaintiff was lawfully employed in making repairs upon the highway, and which it was the legal duty of the city to make. If in making such repairs he observed ordinary care and prudence to avoid being injured by the passing teams of travellers, he was not guilty of contributory negligence. This also was a question of fact, which the referee has found adversely to the defendant. The degree of care and prudence which the parties were severally bound to observe was such as persons of ordinary care and prudence, or mankind in general, would have observed under the same circumstances. Tucker v. Henniker, 41 N.H. 317. What would be ordinary care and prudence depends upon a variety of circumstances, such as time, locality, amount and character of *Page 44 the travel, and the condition of the highway and of the weather. Whether the plaintiff was bound to use the same degree of care, or more, or less, than a foot traveller in crossing the street, or should have erected a barrier, were not questions of law, but of fact, to be determined by the referee, and, it must be presumed, were urged upon his attention at the trial and considered by him: for it is stated in the report that he finds on both of these points, so far as they are questions of fact, in favor of the plaintiff. The motion for a nonsuit, therefore, was properly refused.
We see no objection to the admission of the conversation between the parties concerning the plaintiff's injuries, on the day following the accident. No reason is stated why the evidence was not admissible. Whatever admissions, if any, the defendant made of his own negligence, independent of any offer of compromise, were admissible, and if none were made, the testimony would seem to have been merely immaterial.
Whether the report should have been recommitted was a question of fact to be determined at the trial term, and it has not been made to appear that any useful purpose would have been accomplished by a recommittal. Janvrin v. Janvrin, 58 N.H. 144. The general finding would remain, based upon all the evidence in the case, including that upon which the additional findings would be based, that the defendant was guilty of negligence, and that the plaintiff was not in fault. If the answers to the requests not already answered should be most favorable to the defendant, they would present no legal reason for a judgment in favor of the defendant, nor would they show that the conclusion of the referee is so much against the weight of evidence that a new trial should be had.
Exceptions overruled.
ALLEN, J., did not sit: the others concurred.