No very strong objection can be made to the former part of the instruction, except perhaps on the difficulty of a jury’s finding what is such a horse, if unruly and vicious at all, as a man may reasonably drive and use on an ordinarily safe highway; and if these directions had stood alone, without the last clause, they would not have been open to exception. But that direction appears to the court to be incompatible with the established principle of law, as administered here and elsewhere. That principle is, that, in order to recover of the town for a defect in its highway, the traveller must not only drive with due care and skill, but must be using a proper horse and vehicle, with strong and suitable harness ; and that, if there be any defect in any of these particulars, and such defect contributes to the disaster-, the town is not liable, although the way be defective. The reason is, because it is impossible to know what proportion of the damage is occasioned by one, and what by the other, or whether there would have been any damage at all but for the traveller’s own default. The authorities are numerous we cite a few only, of those most familiar. Smith v. Smith, 2 Pick. 621. Lane v. Crombie, 12 Pick. 177. Adams v. Carlisle, 21 Pick. 146. The court are therefore of opinion, that if the vicious habits of the horse did operate, upon the occasion in question, and did in fact contribute to the loss, the plaintiff was not entitled to recover, and that the jury should have been so instructed.
New trial ordered.