delivered the opinion of the court. . In this case the defendants claim a new trial on the ground of thé mis-direction of the Judge, in two particulars.
1. The evidence was, that the place where die horse fell off Was a part of the abutment, whereas, the declaration stated that the horse fell off from the bridge; and the judge charged that for the purposes of this action, the abutment ■ must be considered a part of the bridge..
2 v To the charge of the Judge, that “ if the jury foimdthe loss to have been occasioned in any degree, either in whole or in part *358by tho deficiency of the bridgo, the Six hutment being regarded as a part, tho plaintiff was entitled to recover the amount of his loss.” — 1 As the court regard the charge to be erroneous in this point, it is unnecessary to consider the first objection. The statute (p. 432, see. 13.) provides “That if any special damage shall happen,to any person or persons,' or to his, her, or their teams or carriages, by means of any insufficiency br want of repairs in any highway, or publick bridges in any town in this state, the party sustaining such damage shall have the right to recover the same in an action on the caSe against such town.” The “special damage” for which the statute'gives this action, is that which is caused by “ deficiency or want of repair” of the bridge : and the person injured . must show the injury to have arisen from that cause. He must show the.occurrence of the specific contingency on which die statute has made his right of action to depend; for there is but one contingency for which it has made provision. If the loss was occasioned wholly,or in part, by the negligence or misconduct of the party himself; he could not surely recover “ the amount of the loss;” the bridge may be very defective, and yet the loss may be clearly occasioned by such negligence, or misconduct, or some other cause ; and' yet, on the principle of the charge, the party sustaining it, may be remunerated for his misfortune or misconduct at the expense of the town. Whether the damages may not be divisible, if the jury find the loss to be occasioned partly by his own fault, and partly by the deficiency of the bridge, is not necessary here to be determined. For on the supposition that tho jury so fin'd, the charge holds the town responsible for “ theamount of the loss.”
The doctrine laid down by Parsons, C. J. in the case of Wood vs. Town of Waterville, 4 Mass. R. 423, has direct application to this case. The horse of the plaintiff, Wood, was destroyed in consequence of a defect or want of repair of a bridge. The de-fence of the town was,that the plaintiff, Wood,was himself highway surveyor; and that the defect in the bridge,Hvas caused by his neglect to repair the bridge, which his duty required him to do ; and therefore he was himself in fault. Judge Parsons remarks, “ From an examination of the act,” which is similar to our own, “ it *359is manifest thatjthe principle on which darn-ages are given is that the fown have neglected to cause repairs to be made, agreeable to the duties enjoined on them by law, and that the. ‘party injured is in no, fault. For it cannot be presumed that the a.ct intended to provide a remedy for damages sustained by any man through his own wrong.” -In the present case the doctrine of the charge is, that the plaintiff is entitled to recover ■“ the amount of the loss,” if it is found to have been occasioned in any degree, in whole, or in part, by the deficiency of the bridge, whether the loss arose in any degree from his own misconduct or not.
The verdict must be set aside and a new trial granted,