By the Gen. Sts. c. 167, § 9, all racing, running, trotting or pacing of any horse or other animal for a purse or stake is declared to be unlawful; and all persons engaged in it, or aiding or abetting the same, are subject to fine or imprisonment. But by the St. of 1865, c. 67, this section is not to be so construed as to make unlawful trials of the speed of horses for premiums offered by legally constituted agricultural societies. The defendants are such a society, and had offered a premium of $25 for the best exhibition of the speed of running horses at their annual exhibition on their own grounds, where they had a track for the purpose. The plaintiff and Carpener had entered into a competition for this premium, and the society had received from the plaintiff a fee for the privilege. It was to be upon their race course, and it must have been implied *406that the plaintiff’s horse was to have an opportunity to run at his highest speed. Obstructions upon the track would endanger his life; and, as he must be guiding his horse and urging him on, he could do but little towards avoiding obstructions. The duty of keeping spectators from the track would devolve upon the defendants, and not upon him; and the circumstances of the case would require of them a high degree of care.
The instructions prayed for by the defendants were properly refused, for the legal propositions stated in them are not correct, nor are they applicable to the whole case. The rule of law in respect to the use of care, which has been sanctioned by the court in Todd v. Old Colony & Fall River Railroad Co. 7 Allen, 207, and other cases, is, that it must be reasonable care, adapted to the circumstances of the case. It applies equally to both parties. When the degree of care which was required, or which was used, is to be inferred from a variety of circumstances, or from conflicting evidence, the case should be submitted to the jury under instructions from the court; and it is proper, and often important, that the instructions should refer to the circumstances appearing in evidence, in order that the jury may apply the general rule properly.
In this case, it is obvious that the circumstances in which the plaintiff was placed were materially different from those in .which the defendants and their officers were placed. Although the statement contained in the instructions, that the plaintiff had a right to believe that the defendants would exercise the highest care which reasonable men could do to prevent any obstructions being upon the track, may be too strong, taken by itself, yet the statement of the rule, and of its application to the case, which was adopted at the close of the instructions, in conformity with the plaintiff’s prayer for instructions, was in substantial conformity with the general principle, in its application to the circumstances of the case, and on the whole we cannot see that the jury would be likely to be misled.
The question to Sibley, why he did not attempt to stop Mar-ole from coming upon the track, was properly excluded; for it might properly have been answered by stating what passed in *407his own mind, which would be immaterial. There was no offer to prove any fact in relation to the matter, and therefore it does not appear that any material evidence was excluded.
Exceptions overruled.