A new trial must be granted in this case, in order that the question may be submitted to the jury, whether the highway was defective when Waite, the surveyor of highways, left it, on the afternoon previous to the injury complained of; for if it was then defective, although, by the ordinary action of the elements, it would become and did become .more defective, the town had notice of the defect, and would be liable for damages caused by it. It is not necessary to consider whether the town would be liable for a new and different defect, at the spot where a previous defect existed, whether such new and different defect was occasioned by ordinary or extraordinary means; because the claim of the plaintiff is that the same defect existed *236at the time of the injury which existed the day before, greater in degree, indeed, but the same defect. This question it is his right to have determined by a jury. If the road were safe and convenient for travellers the day before the injury, the town would not be liable for defects caused in the night by any mode, without notice. If, however, the surveyor of highways left it in a condition not safe and convenient, the town would be liable for injury caused by that defect, though the ordinary action of the elements increased the danger to travellers.
New trial granted.