There are numerous assignments of error in this case, covering almost, if not quite, every proposition of law submitted by the court to the jury; but it will not be necessary to consider them all separately, because some were not insisted on in the argument, and others may be grouped together so as to bring the main question involved within a comparatively small compass :
1. The court below erred in rejecting the interrogatories of Thomas Joiner, they having been taken while the witness resided out of the county, and offered by the defendant after the witness, _who was present at the trial, had been put upon the stand, and had stated that he had been recently sick, and that bis sickness had weakened his mind and affected his recollection, and that his mind was not in a condition then to remember what really did happen, and that he was well and his memory was better when he swore to the interrogatories; it appearing from the record that tho testimony delivered by the witness in answer to the interrogatories was pointed, clear and positive, while that delivered on the stand was doubtful, hesitating and uncertain.
*4792. It is the duty of the proprietor of a toll-bridge to exercise ordinary care for the keeping of his bridge in safe condition for travel, but he is not bound in law to go beyond this. The charge of the court, in a number of places, proceeded upon the theory that there was some additional obligation resting upon him. For instance, the court told the jury that “ if the plaintiff was drunk, and if the bridge-keeper knew it, and with that knowledge undertook to put him over, it was his duty to have exercised more care, prudence and diligence than if he had been sober;” and again, “ that it was defendant’s duty to use ordinary diligence in seeing that he crossed safely,” and similarly in several other places. These instructions may have misled the jury, and caused them to believe that there was some additional duty upon the defendant beyond that which the law imposes, and were erroneous.
3. The charge of the court, repeated a number of times and stressed with emphasis, on the subject of the duty of a bridge-keeper to warn the traveling public of the unsafe condition of a bridge undergoing repairs, was erroneous because inapplicable to the facts of this case. It would make no difference whether warning were given or not, if all could see for themselves what was going on, and here there was no question about the fact that the plaintiff knew that the bridge was torn up and partially displaced, because, by his own testimony, he stopped and looked, and had the fullest opportunity to see and judge for himself ■whether it was safe for him to venture or not. The stressing of this point by the court in his charge doubtless had the effect of causing the jury to attach too much importance to that subject, as affecting the defendant’s liability to the plaintiff.
4. The charge of the court that, “ If the rule of the bridge-owner is to take toll in advance for crossing and re-crossing, and this rule is complied with by the traveler, the payment was as good as if paid each time of the crossing,” was erroneous, under the facts of this case, because *480it should have been qualified by a reminder, in the same connection, that if, in the meantime, the bridge had been torn up for repairs, and its use as a toll-bridge suspended, the fact of the plaintiff’s having paid his return fare when he first crossed would not of itself give him the right to re-cross, if he was warned, or had knowledge of its unsafe condition. The payment of fare at the time of re-crossing would have been evidence of the use of the bridge at that time as a toll-bridge, but the payment of return fare at the time of the first crossing was not such evidence, and the failure of the court to draw this distinction rendered the charge as delivered erroneous.
5. The charge of the court, repeated in several places, to the effect that if the danger- was hidden and could not be seen and avoided by the exercise of ordinary care, and injury resulted, the owner would be liable, was erroneous, because not authorized by the facts of the case. -The evidence in the record does not disclose that there was any hidden danger. The plank of the floor had been torn up from one span of the bridge, and one end of it had been elevated several feet, and any man, by the exercise of ordinary care, ought to have known that there was a space between the elevated end of the span and the floor of the bridge, if elevated to a sufficient height, through which a man might fall. It was all open and exposed to view, and it was error in the court, under these facts, to refer to it as a hidden danger.
6. The law, as laid down in section 2972 of the Code, that in cases where the plaintiff could not have avoided the consequences of the defendant's negligence by the exercise of ordinary care, the defendant is not relieved, although the plaintiff may in some way have contributed to the injury, was properly given in charge as applicable to this case, and the qualification thereto by the court, that such contributory negligence might reduce the damages according to the circumstances of the case, was not error.
Judgment reversed.