The opinion of the Court was pronounced by
Baylies, J.The 5th Sec. of the Act establishing a corporation by the name of “ The Royalton and Woodstock Turnpike Company,” among other things says, that the “ said corporation shall be liable to pay all damages which may happen to any person from whom toll is demandable, or any other person, from neglect of any bridge, or want of repairs in said road.”
The plaintiffs, in their declaration, have averred in substance, that on the 5th of November, 1831, the defendants’ bridge over White River, on said turnpike road in said Royalton, from the neglect of the defendants, had become, and was decayed, rotten, weak, and insufficient, so that when the plaintiffs were, then and there, driving their fat cattle to Boston market, on said road across said river upon said bridge, the same broke, gave way, and fell with some of said cattle into said river, and by the fall two of the cattle were killed, and others' were greatly bruised and injured, so that the platntiffs suffered two hundred dollars damages to their said cattle from the defendants’ neglect of their said bridge, &c.
It was necessary for the plaintiffs to make this averment to bring the case within the act; and to prove it on trial.
The plaintiffs gave evidence to the jury tending to prove this averment.; and when the defendants offered evidence tending to disprove it, the plaintiffs objected, and the Court excluded the evidence. If it was necessary for the plaintiffs to prove their averment to support their action, *587it was competent for the defendants to disprove it; and no good reason can be assigned, why the Court excluded their evidence.
What strength in the defendants’ bridge would be suffi-eient to exonerate them of negligence, so as not to be lia- ,, . , . , ® , ’ , . ole, in case the bridge should be broken down, and pn-vate injury sustained, has not, to my knowledge, been decided.
It would seem to be the duty of the defendants to build, and constantly maintain bridges of sufficient strength, to bear up the heaviest loads, that usually pass from and to market on their turnpike road : Toll is paid the defendants for the passage of such loads, and the public have a right to require sufficient strength in their bridges to bear them up.
In the case at bar, it is evident that the defendants’ bridge was not of sufficient strength to sustain the cattle that-were upon it: The bridge broke, and precipitated the cattle into the river. Whether those cattle were considerably heavier than one of the largest loads which usually passed said bridge, drawn by six horses on a large waggon, does not fully appear. — Such load, waggon and horses, would probably weigh eight or ten tons; and if the bridge was safe and sufficient to bear up this weight, the defendants could not be charged with negligence in not building and maintaining a bridge of sufficient strength for all ordinary purposes.
But if the plaintiffs carelessly drove their cattle upon the bridge, in a huddled position, so as to get a greater weight upon the bridge than it could bear, and broke it down, when it was of sufficient strength for all ordinary purposes, the plaintiffs are not entitled to recover damages for injuries which they have suffered by their own folly. The principles which I have advanced receive support from the following dicta:
“ The defendants are bound to bestow ordinary care and diligence in the construction and preservation of their bridges. They are not responsible for accidents, if those accidents do not arise from the want of this ordinary care and skill.” — 6 T. R. 90.
“ Where the injury is owing to one’s own negligence, *588ot want of ordinary care, and he could easily have avoided t}ie obstruction, then no action will lie.” — 11 East. 61. The party injured by .a defect in a bridge, must be in no fault himself. “ For it cannot be presumed, that the act intended to provide a remedy for damages sustained by any man, through his own wrong.” — 4 Mass. R. 423.
“ If from fool-hardiness, one should plunge his horse into water, which by a flood had covered a causeway, he knowing it to be so, or if he should enter upon a bridge, Which he saw was weakened by a storm, he ought not to be indemnified for his carelessness.” — 7 Pick. R. 188.
“Though highways are so low as to be overflowed, -towns are not liable for injuries which happen on them, if it was imprudent to pass them in such a condition, or if ¡they were passed unskilfully.” — 2 N. H. Rep. 392.
In the case at bar, the County Court should have admitted the evidence which was offered by the defendants, and excluded by the Court; and should have instructed the jury according to the foregoing principles of law; but inasmuch as the County Court neglected their duty in these ¡matters,
Their judgement is reversed, and
A new trial granted.