The plaintiff was thrown from his carriage and injured while passing over a bridge in the defendant town. For this injury he has recovered a verdict for four hundred and fifty dollars. The case is before the law court on motion and exceptions by the town.
A careful examination of the evidence has satisfied us that the verdict is clearly wrong, and that the motion must be sustained.
The bridge was sixteen feet in length and the same in width, without railing, and about five feet above the bed of the stream. Near the northeast corner there was a hole about two or three feet long and a foot or more in width, where the plank had become broken, leaving sufficient space on the south side for teams to pass.
As a warning to travelers, a plank had been thrust into the hole, so that it stood perpendicularly from the bed of the stream, extending four or five feet above the bridge.
The plaintiff's statement is this : "As I drove up on the bridge the plank was stuck up into the hole, and my horse stepped on the first plank that this rested against, and when she stepped on that it tipped over and struck my horse a little and fetched up on the end of the plank. It touched my horse, and my horse sheered out round and ran the forward wheel off between *466these planks which were of different lengths, and kept right on going.”
There is no evidence that any municipal officer, highway surveyor or road commissioner of the defendant town had twenty-four hours’ actual notice of the defect that caused the injury.
The defendant within fourteen days from the time of receiving his injury served notice in writing upon the municipal officers setting forth his claim for damages, and specifying the nature of his injuries, and therein stated that: "The injury was caused by a broken plank or hole in the bridge crossing said brook, and a piece of board placed endwise in the hole and projecting upward above the road several feet, causing my horse to pass on one side of the traveled way throwing my wagon wheel off the end of the bridge, which at that point is narrow, and without any railing or safeguard of any kind.”
The evidence is conclusive that the proximate and responsible cause of the injury was the hole in the bridge with the plank standing endwise in it. It was the efficient, proximate cause of the injury. It was not a mere agency through which another defect operated to produce the injury. Spaulding v. Winslow, 74 Maine, 528. It had more than a casual or accidental connection with the injury. The plaintiff, himself, in his written notice to the municipal officers states that it was the cause of the accident, and he was undoubtedly correct as the evidence clearly shows. In his testimony, in answer to the question, "what was the real cause there that produced the accident?”— his answer is — "I think it was the plank that fell against my horse that started her to shy.”
For the existence of this hole, with the plank standing in it, the town was not legally liable ; for the evidence absolutely negatives the fact that the town ever had the twenty-four hours’ actual notice of this defect as required by statute.
Had this defect not been the real, true, efficient cause of the accident, but merely an agency which induced, influenced the accident, a medium or inducement through which another and independent defect produced the injury, then the case would be different, and the town might be liable for the injury resulting by means of such other and independent defect.
*467This distinction is clearly laid downin the opinion drawn by Chief Justice Peters, in Spaulding v. Winslow, supra, where he says: "Here, then, must be the proper distinction. If the hole or the horse’s fright at the hole, was the proximate cause of the injury, the plaintiff cannot recover. If it by chance became merely an agency through which another defect operated to produce the injury, then he can recover.”
The same distinction was observed in Aldrich v. Gorham, 77 Maine, 287, wherein it was held that if any other efficient, independent cause, for which the town is not responsible, contributes directly to produce such injury, then the town is not liable.
The plaintiff, however, contends that the cause of the injury was the lack of a railing on said bridge, and that the want of such railing is sufficiently set forth in the written notice to the municipal officers.
But we are not inclined to take this view of the case. For, as we have distinctly stated, wre have no doubt that the proximate, efficient cause of the injury was the hole, with the plank in it which struck the horse and caused it to sheer out and run the wheels off the bridge. This was "the nature and location of the defect wffiich caused such injury” ^R. S., c. 18, § 80) as. set forth in the written notice to the municipal officers. But the' case is barren of any twenty-four hours’ actual notice to the town of this defect. Consequently, there is no liability attaching to. the town, for, by the statute, that is a fact that must be established affirmatively before the plaintiff will be entitled to recover. It is a condition precedent to a right of recovery.
It is a very serious question whether, if it were to be held that the want of a railing was the proximate cause of the accident, the notice in writing to the municipal officers was sufficient to comply with the statute in reference thereto ; but upon the sufficiency of this part of the notice it is unnecessary to express any opinion.
Motion sustained. New trial granted.