This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff, and against the defendant, and from an order denying a motion for a new trial. The plaintiff’s intestate was killed in an accident occasioned by a wagon in which he was being driven going off the side of a bridge located in the defendant’s town. The alleged negligence of the defendant was in maintaining, or permitting to remain, a bridge upon one of its highways without guards or rails, and, as is claimed, with the planks constituting the floor thereof of unequal lengths, so that the wagon in which plaintiff’s intestate was at the time of the accident, after going a short distance on the bridge, came to a place where the planking thereof did not extend as far out to the side as at the entrance to the bridge, in consequence of which the wheels of such wagon ran off the side of the bridge, overturned the wagon, precipitating the intestate into a creek below, the wagon falling upon him, and keeping him there until he was dead.
For the purposes of this discussion, it will be assumed that the evidence given upon the trial was sufficient to warrant the finding by the jury that the defendant was negligent in not properly maintaining and caring for the bridge in question. In addition to that, however, it became incumbent upon the plaintiff to establish, affirmatively, freedom from contributory negligence upon the part of the intestate. Absence of proof upon that question is fatal to the plaintiff’s cause of action. The jury are not to be left to guess or conjecture; there must be evidence showing proper care and caution under the circumstances, or evidence from which the jury can infer proper care and caution upon the part of the deceased. Is there any such evidence in this case? Plaintiff’s intestate, together *972with one Cameron, were driving from the city of Albany to their homes, in the county of Greene. Both had been drinking. The intestate appears to have been almost helplessly drunk. Cameron admits that he felt the effects of what he had been drinking. Cameron was driving, and the intestate, at the time or just prior to the happening of the accident, was down upon his knees in front of the wagon seat, his intoxication being such that he could not remain upon the seat. It was about half past 7 in the evening, and seems to have been intensely dark. The bridge in question is between 12 and 13 feet in width. The road is a little over 33 feet from fence to fence. The traveled portion of the road is 11 feet in width. Before reaching the bridge, the horses had gone off the roadway at various points, and come back, and, some distance before reaching the bridge, the horses again strayed away from the road. About 40 rods distant from the bridge stood a house, in which a light was to be seen as it was approached.
Cameron says:
“I knew about where the bridge was in a general way, and that I. was coming close to it when I saw the light. Now and then I watched the light. I didn’t really think about the bridge until I struck upon it. I came on it all right with the horses. I knew it was there. I hadn’t been looking out for it as I came along; not particularly. I supposed I was in the road as much as I am in the chair. I sat there easy. I was not thinking about running off the bridge. I supposed I was in the road, and getting across the bridge right along. I wasn’t giving myself any particular uneasiness about the bridge. I knew it was there, and thought it would be all right when I got there.”
Again he says:
“It was quite dark. You could not see the road to drive without the lantern, except to see generally the fences and the make of the road.”
And again he says:
“I could not see the road at all sitting in the seat. I had the lines in one hand, and the horses kind of picked their way. They walked right along until we came to this bridge. I had to leave it to their instinct, or what they could do as to following the road. I knew when we came to the bridge. The next thing I knew, we were bottom side up, or the wagon was.”
He stated that the first three or four planks as he went on the bridge extended further out over the side of the bridge than those next succeeding them; and that, before reaching the bridge, they were off the road, and the horses turned in again; and, upon examining the bridge next morning, he says:
“I saw the mark of the left-hand wagon wheel where it first went on the bridge. It didn’t go straight in crossing these three or four planks. I was out of the road, and had to go kittering to get out on the bridge. After the wheel got on the bridge, it went straight on the plank. When it got to the end of the third plank, then the wheel went down in consequence of a short plank.”
Upon his cross-examination he testifies:
“I was about halfway out of the road before I came to the bridge. I got out of the road coming down from Mead’s to the bridge. The wagon tipped twice, and I noticed it and pulled in. When I was out of the road at the bridge, I didn’t notice I was out of the road until I went off the bridge. I had been out twice before that. The wagon tipped a little, and I knew I *973was out of the road, and pulled the team in, and went on. I know now that the fact was that I was out of the road just before I got to the bridge. Within twenty feet of the bridge, I was in the ditch at the side of the road. I didn’t know it then; I know it now. We were about three feet three inches from the beaten track. Before we got to the bridge, the horses hauled into the road; I didn’t. If the horses had gone straight ahead, three feet from the bridge, my left wheel would not have come within three feet of the bridge; they would not have touched the bridge.”
This testimony of the plaintiff’s principal witness, the survivor of the accident, shows pretty clearly how the accident happened, and its cause, and furnishes evidence from which the jury were to find that the plaintiff’s intestate exercised due care and caution, and was not guilty of contributory negligence. The care and caution necessary to be observed is to be measured by the circumstances of each case, and is commensurate with the difficulties and dangers of the locality, and the danger to be apprehended. The plaintiff’s intestate in this case, I think, was properly chargeable with the manner in which Cameron conducted himself. If Cameron exercised due and proper caution under the circumstances, it inures to the benefit of the plaintiff; and, if he did not, the plaintiff’s intestate, I think, must be held responsible for it. There is no evidence that Cameron did anything by way of precaution; no affirma-. tive evidence of any act done by him; and I can find no evidence from which the jury could draw any inference of care and precaution on his part. Cameron knew that he was approaching a narrow7 bridge. He knew that he had already strayed from the road. It , was so dark that he could not see the road at all sitting in the seat. He made no effort to guide his horses at all, leaving it, as he says, to their instinct. He says that he was not looking out particularly for the bridge, although he knew it was there. '~It seems to me that in approaching a narrow bridge, crossing a stream, upon a night like that testified to in this case, the conduct of Cameron, as testified to by himself, was not such as to warrant the jury in finding affirmatively that he was free from contributory negligence.
The judgment and order should be reversed, and a new trial granted; costs to abide the event.
MAYHAM, P. J., concurs.