The right of the plaintiff to recover in this cause depends upon two questions, viz : whether the injury of which he complains was caused by the neglect of the defendant to construct the road as required by the statute, and to keep it in proper repair ; and whether any fault or want of care on the part of the plaintiff contributed to the injury. Unless the injury is wholly chargeable to the fault of the defendant, the plaintiff cannot recoven
We have been referred, by counsel on both sides, to that class of cases in which actions are brought against carriers of passengers, to recover damages for injuries sustained from the use of unsound or unsafe vehicles, or the employment of unskillful drivers and servants. In such cases, the law demands the utmost human foresight, and that degree of diligence which characterizes very cautious persons. (Edwards on Bail. 584. 9 Bing. 457. 13 Wend. 627.) As far as human care and foresight will go, they must be put in requisition to transport safely. (Stokes v. Saltonstall, 13 Peters, 191.)
But this case does not belong to.'that class. The defendant has not assumed the more delicate and responsible task of trans*79porting the plaintiff, but is chargeable only with the duty of providing the road over which he may travel. If a question had arisen as to the safe construction of bridges, the defendant would be held responsible for the exercise of ordinary care and skill, but for nothing further. It was so adjudged in Townsend v. this same defendant, (6 John. 90.) In that case the court Said, “ the defendants are bound to bestow ordinary care and diligence in the construction and preservation of their bridges. They are not responsible for accidents, if these accidents do not arise from the want of this ordinary care and skill.”
If there was a failure on the part of the defendant to comply i with an express requirement of the statute, either as to the ; width of the road, or the mode of its construction, and a per- i son traveling’ over it sustained an injury in consequence of such . omission, the defendant is responsible, unless it appears that the plaintiff could have avoided the injury by the exercise of ordinary care and prudence. In such case there is no question involved, of want of skill or care on the part of the defendant, but the omission to comply with the statutory requirement is a ; nuisance, for which a party injured, without negligence on his | part, may claim damages. (Harlow v. Humiston, 6 Cowen, 189. Dygert v. Schenck, 23 Wend. 446.)
Such ip the question presented in this case. If the plaintiff’s injury.was justly and wholly chargeable .to any neglect of the defendant to construct or maintain the road as required by law, he ip entitled to recover. If it was not chargeable to any such omission, or if fault or want of care on the part of the plaintiff contributed to the injury, the action is not sustainable.
When the plaintiff came to the part of the road complained of, he was not driving along in the ordinary manner. Whether the unfastening of the trace was owing to want of care on the part of those traveling, or whether it wms purely accidental, and beyond the control of ordinary care, it was not certainly chargeable to the defendant. It was either the plaintiff’s fault or his misfortune that the failure of the harness had rendered the horse less manageable, and exposed the plaintiff to peril. Under such circumstances, the plaintiff sprang from the wagon to *80escape apprehended danger, and received, by his fall, the injury for which he now seeks recompense. The wagon was not overturned, nor was the companion of the plaintiff thrown out, and there can be little if any doubt but the plaintiff would have been uninjured if he had not jumped from the wagon,
Under' such circumstances, it is necessary to ascertain whether the defendant is legally answerable for the consequences to the plaintiff of his leaping from the wagon. The plaintiff relies upon the case of Stokes v. Saltonstall, (13 Peters, 181.) That was an action against stage coach proprietors for an injury to a passenger, occasioned by the upsetting of a coach; and it was held that if the want of proper care or skill of the driver placed the passengers in a state of peril, and they had, at that time,, a reasonable ground for supposing that the stage would upset, or that the driver was incapable of managing his horses, the plaintiff was entitled to recover, although the jury might be? lieve, from the position in which the stage was placed by the negligence of the driver, that the attempt of the plaintiff to escape might have increased the peril, or even caused the stage to upset, and although they might also find that the plaintiff would probably have sustained little or no injury, if he had remained in the stage. In that case the peril from which the party sought to escape, was chargeable directly to. the defendant, and the decision was put upon that ground. The life of the passenger being jeoparded by the unskillfulness of the defendant’s servant, the defendant was held responsible for the consequences, though the passenger may have judged unwisely as to the best means of escaping. It was only holding the defendant responsible for the confusion of ideas and perturbation of mind consequent upon his own act.
But this case is widely different. The peril from which the plaintiff sought to escape, when he leaped from the wagon, was in no part chargeable to the defendant. Whether that peril was the immediate consequence of the unfastening of the trace, or the unmanageable character of the horse, or the want of skill in the driver, it is not material to inquire. It is certain *81it was not chargeable to any defect in the road; and beyond that the defendant cannot be responsible.
It was then without either necessity or excuse imposed by any act of the defendant, that the plaintiff incurred the imminent hazard of leaping from the wagon upon the stones in the ditch; an act quite likely to be productive of serious consequences, even if the stones had been covered with the same material as the bed of the road, and which would not have been prevented by the erection of fenders. If a man judge unwisely as to taking such a leap, when it is quite certain he would have been uninjured if he had remained in the wagon, I do not see upon what principle the defendant, not being in any respect a party to the transaetion, can be held responsible for the consequences.
If the road was not of the required width at the place of the leap, or not protected by fenders, or not properly covered where the plaintiff alighted, it might furnish a legal ground of complaint, if a traveler, moving over the road in some accustomed mode of travel, should sustain injury, notwithstanding the exercise of ordinary care on his part. But beyond that, I think the defendant is not liable. The company cannot be held answerable for the safety of a traveler who uses the road for a purpose so widely different from the object of its creation. The defendant is not required to cover the road with materials upon which a person may safely alight after so fearful a leap.
It cannot with any propriety be urged that because there were no fenders the plaintiff had reason to apprehend that the horse would run down the bank, and tha.t he leaped out of the wagon to escape such a hazard. The result proved that such fears were unfounded, and there is no reason why the defendant should be answerable for an unnecessary and imprudent act of the plaintiff.
There is no legal construction which can be put upon the facts in this case that will support this recovery. The great injury sustained by the plaintiff was well calculated to mislead a jury, by enlisting their sympathies, if not their prejudices; *82but, in my judgment, it was not a case for the jury. Upon the plaintiff’s own showing, he failed to make out a case, and a nonsuit should have been ordered. The judgment at the circuit ought, therefore, to be reversed, and a new trial awarded.
[Albany General Term, December 3, 1855.Parker, Wright and Watson, Justices.]