The opinion of the court was delivered by
Royce, J.The evidence on the part of the defendants tended to show, that the tree tops had been cut away from the central part of the road, so that loaded teams could, and did, pass each other, between those tops, without inconvenience ; that the plaintiff had passed the tree tops a distance of at least twenty feet when the injury happened ; and that his team was then standing still in the travelled path, with sufficient room on either side for another team to have passed him in safety. Was it the duty of the court to instruct the jury, that upon proof of these facts the defendants were entitled to a verdict ? It has long been the practical and received doctrine in actions of this sort, that whether the road was out of repair under circumstances to place the town in fault, — 'Whether the injury happened from that cause,— and whether the party injured conducted with due care and skill, — are questions of fact, or mixed questions of law and fact, to be determined by the jury under proper instructions from the court. The evidence may, indeed, disclose facts of so decisive a character, as to justify the court in directing a verdict upon the mere finding of those facts. But in ordinary cases, (I mean those which admit of doubt as to the just liability of the town) such a variety of facts and circumstances will usually require to be weighed, that the jury must be left, upon due consideration of the whole matter, to draw the ultimate conclusion.
Assuming, then, that there was a clear space between the tree tops, of sufficient width for teams to pass each other, yet the size and position of those tops might be such as to give the passage a more contracted appearance, especially, if seen even from a short distance, or in a diagonal or transverse direction. The verdict has established the fact that they caused the frightened horse to crowd in upon the plaintiff’s team. It is contended, however, that the road was not out of repair, within the purview of the statute, and that the plaintiff’s loss should be referred to that class of casualties for which there is no remedy. The statute prescribes no *715definite standard of sufficiency in the construction of a road, nor what shall constitute a proper state of repair. It is obvious that this could not be done. The standard should vary as applied to different roads, and even to the same road at different periods of time. I am aware of no rule on the subject, which indicates with greater accuracy the just obligations of a town, than that contained in the second paragraph of the charge. The object to be secured is the reasonable safety of travellers, considering the amount and kind of travel which may fairly be expected on the particular road. There are cases in which the court will take it upon themselves to judge, whether this object has been sufficiently attained; as was done in the case of Halley v. Winooski Turnpike Co. 1 Aik. 74. But in general the inquiry is such as to fall more properly within the province of the jury. And we are satisfied that this case was not entitled to be treated as an exception.
It being thus settled by the jury, in the exercise of their appropriate powers, and under proper instructions from the court, that the state of the tree tops constituted a want of repair in the road, for which the town was justly chargeable with neglect, and that the injury complained of was occasioned by such want of repair, it follows that the distance from the tree tops, at which the injury happened, becomes of no importance. Its only tendency was to render a fact improbable, which the jury have, nevertheless, found.
In regard to the fact that the plaintiff’s team was standing still in the travelled path when the injury happened, it is sufficient to remark, that the want of ordinary care and prudence on the part of the plaintiff is conclusively negatived by the verdict.
Enough has been said to show that the plaintiff is legally entitled to retain his judgment. But a proposition implied in the defendant’s second request should receive some further consideration.- The proposition is, — “that towns are not liable for damages happening upon their roads and bridges, when they are kept in such a state of repair as to enable persons, in the exercise of common and ordinary prudence, to travel upon and over them with their teams and carriages in safety.” This would seem to exclude all liability resulting from accidents on the road. But no such universal exemption, on the ground of accident, has ever been recog*716nized in this state. On the contrary, it has long been considered, and repeatedly adjudged, that a duty does exist, which binds the town or corporation to provide reasonable security in reference to such accidents as may be expected to happen. 1 Aik. 74, above cited; Hunt & wife v. Pownal, 9 Vt. R. 411. In some cases this obligation is strong and manifest, as in that of a high bridge, a dangerous precipice, and the like; whilst in others it is less urgent and scarcely perceptible. The term accident may be employed in these cases to signify the primary or the proximate cause of the injury. And to entitle a party to claim redress in such a case, the accident, be it of either description, must not appear to have been occasioned by any fault of his ; whilst on the other hand, it will be sufficient to show, that the accident in either sense is justly imputable to some fault of the town. Again, it is not required that the fault of either party should alone have occasioned the accident, or produced the injury. If the plaintiff’s fault has but contributed with other means, it will defeat his remedy ; and if he is without fault the town may be subjected, though the want of repair may have only co-operated with other causes in effecting the injurious result. 9 Vt. R. 411, before cited.
Upon the whole, though we may doubt as to some of the conclusions of fact which were drawn in this case, we discover no valid objection to the charge of the judge. And the consequence is, that the judgment of the county court must be affirmed.