The general course of the highway is northerly' and southerly. Near the foot of the hill in the vicinity of Herrick’s house, the surface of the earth within the limits of the way *544being comparatively level, the travel spread" out easterly and westerly of the middle track some forty to fifty feet and several rods in length. To avoid the water which in wet seasons stood in, and sometimes ran across the main track, the town, in October, 1870, constructed a stone culvert directly across the centre of the located way, about eighteen feet in length, with the surface of the covering stones about six feet wide and eighteen to twenty inches above the general surface of the ground. To overcome this height, instead of turnpiking the road, earth was carted in on either side of the culvert making each grade six to fifteen feet long, but leaving the stones at the east end of the culvert exposed. The culvert thus constructed, left ample space for teams to pass and re-pass along the easterly side of the highway as they did before the culvert was built. The earth composing the approaches to the culvert, by the action of the fall rains and the passing, of teams becoming “podged up,” froze in 'that condition. There being no railing, embankment or other thing to prevent, teams for the purpose of avoiding the abruptness and roughness of the grades before the snows fell, continued to sheer to the east, pass the end of the culvert, and sweep gradually back into the main travelled path. After the snows came, the winds swept it from the culvert, and the principal travel continued to the eastward.
The plaintiff frequently passed along this highway before the culvert was built, but had no knowledge of the culvert until he was injured. About ten o’clock in the evening of February 15, 1871, while riding along that highway with his wife and daughter, in a pung sleigh, his horse instinctively following the principal path, took the eastern track, and he went so near to the easterly end of ihe culvert, that the sleigh runner struck the exposed stones of the culvert, whereby the plaintiff was thrown from his sleigh and injured.
The jury found the way defective ; and we cannot say the verdict is against law. While a traveller in the day-time, might with ordinary care pass along that highway with safety and convenience, a stranger by night would be exposed to injury there. Had the *545town adopted the precautions prior to February 15, which they did subsequently, this case would never have troubled them.
The requested instruction was properly denied.
Motion and exceptions overruled.
Appleton, C. J., Walton, Dickerson, Barrows and Peters, JJ., concurred.