Upon the pleadings in this case, the burden of proof at the trial was upon the plaintiff to show that, at the time of the occurrence of the accident by which he was seriously injured, and for which he seeks to recover compensation, he was himself using due care; and the case is reported by the presiding judge to bring before this court the question whether there was any evidence on the part of the plaintiff tending to establish that fact. It was rightly held that, upon the motion for a new trial because the verdict was against the evidence and the weight of evidence, his determination was final and conclusive; not subject to exceptions, nor affording any proper occasion for a report of the case. The sufficiency of the evidence to establish any particular fact essential to the maintenance or defence of an action is strictly within the province of the jury; but whether upon the facts proved there is any evidence tending to establish it is a question of law to be decided by the court.
Whenever a party is required to show that on any particular occasion he was in the exercise of due care, he must produce some evidence to establish the fact. This may be done in various ways. It may be shown by positive and direct proof of the fact, or of any collateral facts and circumstances from which it can justly and truly be inferred. Adams v. Carlisle, 21 Pick. 146. But it is not a thing to be presumed as a mere matter of course. Care imports attention, heedfulness, caution; and to use or take any degree of care there must be some vigilance, some exertion of the faculties to preserve what it is desirable to save, or to avoid the danger or avert the peril to which a person may be exposed. When there is no thought of what may happen as the consequence of the action or conduct of a party, and no vigilance or circumspection is exercised concerning it, there is no care; none is or can be taken under such cncumstances; for care, in its very nature and significa*581tian, imports that to its existence there must be some degree of activity and caution.
The plaintiff was a witness upon the trial, and he relies alone upon the facts stated in the testimony which he gave to show that he was in the exercise of due care when he received the injury of which he complains. In this testimony we think it impossible to find that he took the least possible degree of care to preserve or protect himself from the peril to which he was exposed by the defect in the highway. He admits that he was acquainted with the road; that for several weeks the defect complained of had existed; and that it was within his own knowledge, as he had on several former occasions passed along there, driving his horse upon a walk, because he did not think it was safe to travel there in a more rapid movement. And he adds that, upon the particular occasion when he sustained the injury set forth in the declaration in his writ, he was riding in his carriage drawn by a quick, highspirited horse, accustomed to start quickly, as any highspirited animal is; that as he approached on descending ground the place of the defect, which was plainly visible for a considerable distance before it was reached by him, he was driving upon a trot; that, in this situation and travelling in this manner, he did not think at all of this defect, but that his mind was wholly absorbed in thought concerning his professional business. The result of all these statements is inevitable. His testimony not only wholly fails to show that there was the exercise of that degree of care which men of ordinary prudence use in seasons or on occasions of exposure to 'harm and injury, but is equivalent to a positive declaration that he was utterly incautious, and took no care of himself whatever. It is therefore certain that he entirely failed to produce upon the trial any evidence having a tendency to show the existence and truth of a fact, without satisfactory proof of which he was not entitled to a verdict.
A new trial must therefore be granted. If any additional proof can be produced by the plaintiff upon this question, he has a right to submit it to the jury. If he cannot, it is manifest that his action cannot be maintained.
*582His testimony as to what took place between himself and Dr. Dean, and the advice which he received from him, and what he did in pursuance of it, was properly admitted. It bore directly upon the question of the amount of damages which he ought to recover, if upon the facts proved his action could be maintained. It was important to him to show that his subsequent suffering was not the result of inattention or recklessness on his part, but was the probable or necessary consequence of the injury which he had received, and was neither caused nor increased by any imprudent conduct of his own.
New trial ordered.