The opinion of the court was delivered by
Kellogg, J.The questions presented for consideration in this case arise upon the charge of the court and the refusal of the court to charge as requested by the counsel for the defendant.
' The first and second requests evidently amount to a call upon the court to decide, as matter of law, upon the state of facts therein supposed, the sufficiency or insufficiency of the road; and we are clearly of opinion, that the defendant was not entitled to such a charge. Whether the road was sufficient, or insufficient, was a question of jfact, to be determined by the jury. It has been uniformly so held in this state. And this fact they are to determine upon consideration of all the testimony in the case bearing upon the *397question. . It was so submitted to the jury, accompanied by such instructions as the case seemed to require; and we think they were full and ample, and all that could be reasonably expected, or that the law required.
But it seems to be supposed by the counsel for the defendants, that the case of Rice v. Montpelier is a direct authority upon this point and must control the case at bar. We do not so regard it, but consider that case clearly distinguishable from the present. In Rice v. Montpelier the statement of facts warrants the inference,'that the plaintiff voluntarily diverged from the travelled road, without necessity, and merely for the purpose of having the benefit of snow, there being none in the travelled part of the road, which was some thirty feet wide, and there being a sleigh path on the side of the road, in the ditch, where the accident happened. Whatever remarks may have fallen from the judge, who delivered the opinion of the court in that case, we think it quite evident, from the concluding paragraph of the opinion, that the case was opened solely upon the ground, that the evidence tended to show, that the plaintiff’s departure from the travelled path was voluntary and without necessity, and that the attention of the jury-ought to have been called to that view of the case. The court have never considered that case as establishing the doctrine contended for by the counsel in the present case. Indeed, within three weeks after the decision of Rice v. Montpelier, this court, in the case of Sessions v. Newport,* held a charge, similar to the one requested in this case, to be erroneous, and reversed the judgment of the court below. In the case under consideration we find no facts to warrant the inference, “ that the plaintiff departed from the travelled path without necessity, or that the horse took that direction from a natural instinct, or an inability to see the road, on account of the extreme darkness.” Indeed, there is no pretence, that such was the fact. It is, therefore, unlike the case of Rice v. Montpelier.
That the defendants were entitled to a proper charge upon the subject matter of their third request is admitted; but that they were entitled to a charge in the very language of that request, we think, will not seriously be contended. There are different degrees of in*398toxication; and people may differ widely in their views of what constitutes intoxication. Different individuals may be very differently affected by the use of the same quantity of intoxicating drink. Hence it became proper for the court to explain to the jury what degree, or amount, of intoxication was necessary to deprive the plaintiff of his remedy against the town. We think the charge of the county court upon this point was unexceptionable and was all that the defendants could claim.
The résult is, that we find no error in the charge of the county court, or in the refusal to charge as requested; and consequently the judgment of that court is affirmed.
Not reported.