A.s to this road, made by the Railroad Company, as a substitute for the road which they had taken, it seems to us, that their own charter provides the mode for this, and that they would not be required to resort to the process pointed out in *484the act of 1835, when the Turnpike Company found it desirable to change the locality of their road.
And if the Railroad Company took the old road, and made a substitute, as their charter provides, that was sufficient to justify the Turnpike Company in using it as a part of their road, and that their continuing to use it, as a portion of their road, keeping their gates closed, and taking toll, and actually repairing this portion of the road, was sufficient to establish it as a portion of defendants road, which they were bound to keep in a state of ordinary safety, for the use of travelers, day and night, so far as this could be done by ordinary diligence. And the jury, under the charge of the court, in its ordinary acceptation, must be regarded as having found this, for the form of the charge is in the conjunctive.
The requests of the defendants, in regard to the charge of the court, seem to place the defense upon this ground, and also, that the Railroad Company alone are liable to the plaintiff for the consequences of any act done by them, and which they had a right to do. But, so far as towns are concerned, this point seems to be determined, by the case of Willard v. Newbury, 22 Vt. 458. And we see no reason why the same diligence should not be required of Turnpike Companies, which is demanded of towns, to insure safety to travelers upon the highways, and as was held in the last county, if the fault is really that of the Railroad Company, they may be liable to the town, or Turnpike Company ultimately, for the loss.
The point now urged, that this defect might not have come to the knowledge of the Turnpike Company, does not seem to have been distinctly made, in the court below. And although the court might have been required to give general instructions, applicable to all the testimony in the case, yet they would hardly be expected to give specific instructions, as to any particular point of defect, in the testimony in the case, unless specifically requested so to do. And the existence of such a defect in a road of this character, could scarcely have existed for two days, without coming to the knowledge of the defendants.
The case Batty v. Duxbury, reported in the present volume, on page 155, and decided at the last circuit term in the first circuit, seems to us to have placed this case beyond all question. It was as nearly the same case as it is possible to conceive, at least, in principle. Judgment affirmed.