The only question presented by the ruling at the trial is that of due care on the part of the plaintiff’s intestate. That the injury happened in consequence of his coming upon the defect in the way must be assumed, although not distinctly appearing from the report.
There is no direct evidence either of care at the time of the accident, or the contrary. The rule laid down in Mayo v. Boston & Maine Railroad, 104 Mass. 137, in regard to the extent and mode of proof necessary to sustain such an action, is applicable here. But the circumstances of the accident are not sufficiently disclosed to warrant any inference upon the question of care or negligence. There was an interval of thirteen years between the time of the occurrence and the trial. None of the persons in the horse-car or in the other carriage, both of which were passing at the time in the opposite direction, were produced to testify. The injured party died soon afterwards, so that his account of the matter could not be had. Of the two persons who were with him, one is said to be dead, and the other “ out West,” and his testimony was not obtained. The only witness called, who was able to testify to any part of the occurrence from having seen it, testified that his “ attention was drawn by the crash.” Of course, whatever there was of care or negligence must have preceded the first observation of the witness.
Whether this absence of evidence results from fault, or is only the misfortune of the plaintiff, is immaterial to the decision of the question of law. Without evidence from which due care could properly be inferred as a fact, the burden of proving that fact being upon her, the plaintiff was not entitled to a verdict.
The circumstances which do appear are equally consistent with either negligence or care in the manner of driving at the time of the accident. None of them are such as to indicate care or exclude negligence sufficiently to warrant the inference that due care was in fact exercised. In this state of the evidence, the verdict must necessarily be for the defendant. Smith v. First National Bank in Westfield, 99 Mass. 605.
*522The defect was an open ditch, which had existed for “ sonw months, perhaps a year,” in the side of a way with which the plaintiff’s intestate was familiar; he having occasion to drive over it constantly in the prosecution of his business as a baker, and having his place of business on the same street, and his house not far from it. The occurrence was in the daytime. The course of the track of his wagon wheel did not indicate the operation of any sudden emergency which might prevent his observing, for the moment, his position and that of the ditch. Even if the other carriage was upon the wrong side of the street, or upon the wrong side of the railroad track, as is contended, although not so appearing in the exceptions, that circumstance would not present any difficulty to a careful and experienced driver. We look in vain for any fact in the case to account for the accident in any manner which would exclude the idea of negligence on the part of the person injured.
The testimony offered that the horse was a safe and proper one was competent as evidence upon the issue, if there had been any evidence that the driver was using proper care at the time of the accident. But it did not meet the whole issue, and was excluded, we "presume, for that reason, and not on the ground that it was incompetent in itself. Hobart v. Plymouth, 100 Mass. 159.
Exceptions overruled.