Upon a careful review of the various adjudications, bearing upon the question of the liability of towns fcir damages sustained by travellers upon the public roads, a majority of the court are of opinion, that the nonsuits in the present cases should be taken off, and the cases submitted to a jury, under instructions somewhat different from those proposed to be given at the trial.
A brief reference to the authorities will, I think, clearly show, that the principles, which have been adopted and sanctioned by judicial decisions, require nothing further of the plaintiff than to prove ordinary care and diligence on his part, in all that appertains to himself and his manner of travelling, at the time of receiving the injury; that the road was defective and out of repair, so much so and for such a length of time, as to show the town in legal fault as to such defect; and the further fact, that the injury would not have been sustained, if the town had not so permitted their road to be out of repair.
The proposed rulings, brought before the court by the report in the present case, as it seems to us, go somewhat further, and the inquiry is, whether they can be sustained to their full extent.
In the case of Butterfield v. Forrester, 11 East, 60, always cited as a leading case upon this subject, the principle settled was, that the party seeking to recover damages, by reason of an obstruction placed on the public way, must have been in the exercise of ordinary care and prudence to avoid injury thereby, or he cannot recover. That case recognized the principle which I have stated, and went no further. “ Two things,” says lord Ellenborough, C. J., “ must concur to support the action; an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.”
*605It had been originally made a question, whether he who encumbers the highway unlawfully should not be made answerable for any direct damage which happened to any one who was injured thereby, whether the person thus injured was in the use of proper care or not; and this doctrine was supposed to receive some countenance from Buller’s Nisi Prius, 26. The case of Butterfield v. Forrester fully settled that point, and as an authority has never been questioned.
The case of Flower v. Adam, 2 Taunt. 314, does not settle any principle beyond this, that if the proximate cause of damage be the unskilfulness of the driver, although the primary cause be the misfeasance of the defendant, the plaintiff cannot recover. The grounds of the decision are, however, very briefly stated, and it is somewhat difficult to understand precisely its extent.
The case of Smith v. Smith, 2 Pick. 621, was an action instituted to recover damages for an injury to the plaintiff from an obstruction in the highway; and the plaintiff alleged, that the defendant unlawfully placed upon the highway a pile of wood, by reason of which the horse of the plaintiff received an injury; and it was contended, that the defendant was responsible for all direct damages caused by his illegal acts, although the plaintiff was in some degree wanting in ordinary care ; but the court held that the plaintiff could not recover, if it appeared that he did not use ordinary care to avoid the obstruction. The case of Lane v. Crombie, 12 Pick. 177, merely reaffirmed the doctrine of the case of Smith v. Smith, last cited.
The preceding were all cases of actions against individuals for obstructions placed in the public ways; but they have ever been considered as equally illustrative of the principles which are to be applied to actions to recover damages of towns, for injuries occasioned by their neglect in maintaining and keeping in a proper state of repair the public roads.
The case of Thompson v. Bridgewater, 7 Pick. 188, sanctioned the principle above stated, that ordinary care was requisite on the part of the plaintiff, to entitle him to recover, *606obviously limiting it to what might be strictly termed ordinary care and prudence, and not requiring the party “ to look far ahead for obstructions or defects which ought not to be suffered to exist.” This case clearly did not enlarge the grounds of defence beyond the care previously referred to, and gave no sanction to any instructions as to any duty devolving upon the plaintiff beyond ordinary care and diligence, or authorized or required any thing beyond that as a condition precedent to the right of recovery, where the road was shown to be defective and in want of repair.
The case of Howard v. North Bridgewater, 16 Pick. 189, is supposed, however, by the counsel for the defendants to extend the grounds of defence in cases of this nature beyond the mere question of want of ordinary care, and to authorize the further instructions that were proposed to be given at the trial before the jury. This case, it must be admitted, does fully sustain the position, that there may be cases of injury received by travellers arising directly from obstructions within the limits of the located highway, and where the plaintiff was not wanting in ordinary care and diligence, or, in other words, where there was no negligence on his part, and yet he may not be entitled to recover damages of the town. To this extent it is certainly a strong case for the defendants. But it is to be remarked, that that case differed materially from the present in one respect. The facts there presented a case where the defect in the road, which was the cause of the injury to the plaintiff, was not one rendering it so far out of repair as to be the subject of an indictment. The opinion of the court, given in favor of the defendants in that case, is placed directly upon the ground, that no defect in the road existed in reference to the public travel. The only question was, whether it was such a defect as to subject the town to an indictment therefor; if so, it was held, that the party receiving the injury would be entitled to recover; if otherwise, the town would not be liable.
The proposed instructions to the jury, in these cases, were not thus restricted. They were, “ that, supposing the want *607of a rail or barrier upon the wall and against the pond was a defect, and that there ought to have been such a rail or barrier, to direct and secure persons travelling on the road in the night or at other times, still the want of such a barrier, in the case supposed, would not be the immediate and efficient cause of the damage complained of; it would be only an incidental or remote consequence of the accident, which occurred on an unexceptionable part of the highway ; and, therefore, that, in the case supposed, the want of such rail or barrier was not a defect which would render the town liable in these actions.”
So far as this defence is placed upon the ground, that the pole and harness became detached from the carriage, on a part of the highway which was not defective, and, in consequence thereof, the carriage passed out of the travelled part of the road, and the injury for which the damages are claimed occurred by reason of a want of railing at such place, without the ordinary travelled road, the court are of opinion, that the jury should have been instructed to inquire whether the want of such rail or barrier was a defect, and whether there ought to have been such a rail or barrier, for the proper security of persons travelling on this road ,• and if so, then the neglect of the town to keep up such rail or barrier would show such neglect of duty on their part, as would authorize the plaintiffs to maintain these actions, so far as this objection is interposed, if, in the opinion of the jury, such a barrier as would be required for ordinary travel would have prevented the happening of the injury complained of by the plaintiff. If, on the other hand, a barrier suitable for ordinary travel, and of such character as would have protected the town from an indictment, would not have prevented the' injury, then the plaintiff ought not to recover.
The further question, which seems also to be presented upon this report, whether, in case of an injury received while travelling upon a public way shown to be defective, but where the accident or injury is attributable in part to a defect in the carriage or harness, but occurring under such circumstances *608as show that the plaintiff was chargeable with no fault or negligence in the matter, the town is liable for the damage, is one not free from difficulty. Against maintaining such action, it is strongly urged, that the injury is not fairly imputable to the defect in the highway; and inasmuch as it has resulted, at least in part, from causes for which the town was not responsible, and over which it had no control, the town should not be chargeable with damages therefor. If the objection was, that the injury was caused by the combined effect of an obstruction or want of repair in the road, and the want of ordinary care, diligence, or skill on the part of the plaintiff, in reference to his harness, his horses, or his carriage, or the use of the road, it would be very clear that the plaintiff could not recover. He must be without fault in this respect; and if not so, although the highway be out of repair, the town is not liable. But is the like effect to follow, when there is a defect in the road, but the accident or injury is attributable in part to a defect in the carriage or harness, which defect was unknown to the plaintiff, and which was of such a character that it might have existed, and yet no fault or negligence be chargeable by reason thereof to the plaintiff? We should be slow to adopt or sanction any principles, in reference to this class of actions, that would in so many cases render the statute nugatory. If the circumstance, that some accident or casualty occurred, as the primary cause, and which, by reason of a defect in the road, and through their combined operation, caused the damage to the plaintiff, would deprive the party of recovering damages, the protection to the traveller would be very much restricted. It is the ordinary course of events, and consistent with a reasonable degree of prudence on the part of the traveller, that accidents will occur; horses may be frightened, the harness may break, a bolt or screw may be dropped. To guard against damage by such accidents, the law requires suitable railings and barriers, a proper width to the road, and whatever may be reasonably required for the safety of the traveller.
It seems to us, that when the loss is the combined result *609of an accident and of the defect in the road, and the damage would not have been sustained but for the defect, although the primary cause be a pure accident, yet, if there be no fault or negligence on the part of the plaintiff, if the accident be one which common prudence and sagacity could not have foreseen and provided against, the town is liable. This doctrine in no respect conflicts with the well settled rule requiring the plaintiff to use ordinary care and diligence, and that, without showing this, he cannot recover, though the road be defective, and the damage be occasioned by the combined effect of a defective road and want of care and skill in avoiding the injury.
I think the view thus presented, as to this last point of inquiry, to be entirely in accordance with that taken by this court in the case of Howard v. North Bridgewater, above cited. That case, like the present, was a case where damages were claimed for an injury, the primary cause of which was a pure accident. The bolt by which the whippletree was fastened to the cross-piece came out, and the whippletree falling upon the legs of the horse, he was frightened and broke from the harness, and ran with great violence upon large loose stones which lay within the limits of the road, but without the travelled path. The opinion of the court was, that, notwithstanding the primary cause was a pure accident arising from a defect in the plaintiff’s carriage, and the damage was occasioned by an obstruction without the travelled road, yet the plaintiff ought to recover, if the jury found the road was defective and out of repair by reason of permitting such stones to remain there. The only difficulty in the way of the plaintiff’s recovering there was, that the road was not found to be defective and out of repair. In the present case, on a further trial, if no defect should be found to have existed in this highway, the plaintiffs would fail to maintain their actions. But in the case as now stated and assumed, for the purpose of presenting the questions of law, the defect of the load and want of a barrier or railing, to constitute the road such a one as would exonerate the town from an indictment, *610are assumed, and the rule of law now stated by the court is adopted upon the hypothesis, that the jury should find that the road was defective and unsafe for the purposes of public travel, by reason of the want of a railing or barrier.
The view which we have thus taken, upon the point last considered, has been sanctioned by the supreme court of Vermont, in the case of Hunt v. Pownal, 9 Verm. 418, where it was held, that if the road be out of repair, and the injury happen by reason of such want of repair, and the plaintiff is himself guilty of no want of care and prudence, the town is liable, notwithstanding the primary cause of the injury be the failure of a nut, or bolt, which was insufficient or improperly fastened. That case has many features in common with the present, and is distinctly in point.*
Some reliance was placed by the defendants’ counsel upon the case of Farnum v. Concord, 2 N. H. 392, as a decision favorable to them. In our view, the defence there was well maintained, upon the ground that the plaintiff was not using ordinary care and prudence to avoid the exposure to injury; he well knowing that the road was overflowed with water, and that an attempt to pass on it must be dangerous. The language used there and elsewhere, “ that the loss must be produced directly by the defect in the highway,” may be entirely correct when taken in connection with the defence of want of care, skill and diligence on the part of the plaintiff, and where the loss is produced by the combined result of such causes with a defect in the road. But where these dc not exist, and the primary cause is a pure casualty, happening without the least fault or negligence on the part of the plaintiff, and, in consequence of the defect or want of repair, an *611injury is sustained which might otherwise have been avoided, the principle can have no application beyond what is embraced in the rule of law already stated, as the opinion of this court, and that which is to govern the present case.
The Rev. Sts. of Vermont, c. 21, § 26, provide, that “ If any special damage shall happen to any person, his team, carriage, or other property, by means of the insufficiency or want of repairs of any highway or bridge in any town, which such town is liable to keep in repair, the person sustaining such damage shall have right to recover the same in an action on the case, in any court proper to try the same.” The statute in force when the case above cited was decided was substantially the same.