It seems to us that there was positive evidence in this case of due care on the part of the plaintiff, which ought to have been submitted to the jury. It is only when there is an entire absence of any facts to authorize the inference that the plaintiff was conducting himself with reasonable prudence and discretion, or the undisputed facts of a case prove actual negligence, that a case like the present should be withdrawn from the consideration of the jury. Such was not the state of the evidence at the trial. On the contrary, it appeared that the night was dark, that the horse of the plaintiff was gentle, that he was driving at the time of the accident on a slow trot, and that he and his companion were each looking out of the plaintiff’s vehicle on the sides of the road at the time the collision took place. Thesé facts were all competent, and had a direct tendency to show that the accident resulted solely from the obstruction of the road by the wagons of the defendant.
Besides; it appears that the wheels of one of these wagons against which the vehicle of the plaintiff struck was in the travelled track on one side of the road, in a position which might well cause an accident to a person using the highway, in the exercise of due care. The fact that the plaintiff had seen the wagon in the same place in the course of the day and before the accident happened does not necessarily show that he was wanting in due care. Snow v. Housatonic Railroad, 8 Allen, 450. Reed v. Deerfield, Ib. 522. Especially in this case, where the obstruction was unlawful, the plaintiff had just ground to suppose that it would be removed before nightfall.
Exceptions sustained.