We do not perceive, that the question discussed by the counsel for the defendant, and on which they claim a new trial for the misdirection of the court below, arises in this case, as it is presented to us on the motion. That question respects the liability of the defendant for gross negligence on his part, in case the negligence of the plaintiff concurred in producing the injury complained of. The defendant, however, did not claim on the trial, nor are there any facts claimed to be proved by him to shew, that the plaintiff was guilty of any negligence, at the time when the collision took place. He claimed to justify himself only by the misconduct of the plaintiff, which is detailed in the motion, and which he claimed to have proved. That misconduct consisted of the course which the plaintiff pursued previous to the meeting of the parties at the bridge, which was previous to the collision and some distance from the place where it happened. Now, it is very obvious, that what took place before that meeting, however improper or indiscreet the conduct of the plaintiff may have been, would furnish no justification or excuse for the act of the defendant in subsequently driving his carriage against the plaintiff’s, either through design or negligence. For, subsequent to that meeting, no negligence was claimed to be proved on the part of the plaintiff. It was *364indeed claimed to to be proved, by the defendant, that the plaintiff subsequently endeavoured to keep before the def'end-ant; but that of itself was perfectly lawful; — it involves no misconduct or negligence on the part of the plaintiff; nor would it justify the defendant in endeavouring to prevent it, by either intentionally or negligently running against the plaintiff’s carriage. The defendant also, undoubtedly, had the right, if the road would admit, to pass the plaintiff, and the plaintiff had no right to prevent it; and if, when the defendant attempted so to pass, the plaintiffhad designedly placed his carriage in the defendant’s way, or negligently omitted to give him room to pass, perhaps he might be left to suffer the consequences thus brought on himself, by his own neglect or intentional misconduct. Nothing of this kind is, however, imputed to the plaintiff. The defendant did indeed claim, that if he, through negligence, drove his carriage against and thereby overset the plaintiff’s, yet that the plaintiff was also guilty of the misconduct, claimed to be proved by the defendant, concurring to produce the result, and was therefore not entitled to recover for the injury. That misconduct, however, was not claimed to be, nor did it constitute, negligence on the part,of the plaintiff; and it is obvious, by looking at the character of that misconduct, that although it may have been remotely the means of ultimately placing the parties in a situation without which the collision would not have occurred, yet that, legally speaking, that misconduct could not possibly concur in producing the result, in such a sense, that is to say, so directly and necessarily, as to excuse the defendant for what took place at the time of the collision, and directly and necessarily caused it. This being the case, where is the state of facts claimed by the defendant, which required the court to instruct the jury as to the effect of negligence on the part of the plaintiff concurring to produce the injury ? If indeed the defendant had claimed to have proved, that the plaintiff was guilty of any such negligence, it would have been the duty of the court to instruct the jury as to the law applicable to it; but when the defendant claimed to excuse himself, not on that ground, but merely on what had occurred between him and the plaintiff* previously, and before the fresh race between them at the bridge, we do not perceive how the court was called on to charge the jury, as to the effect of any other merely supposed or possible state of facts. It is sufficient, *365that on the facts claimed to be proved by the parties, the court A ... A 1 1 , ■ , cioes not state the law erroneously to the jury, or when quested, omit to state it correctly7. The court below, therefore, committed no error in not charging the jury, that the plaintiff was not entitled to recover, either if the misconduct on his part, which the defendant claimed to have proved, or if the negligence of the plaintiff concurred in producing the injury complained of. The plaintiff claimed, that the injury occurred entirely through the negligence of the defendant, without any negligence on his part; and also, that, if the plaintiff was guilty of negligence, the defendant drove his carriage against the plaintiff’s, by design or gross negligence, and thereby caused the injury ; and that in either of these events, the plaintiff was entitled to recover. This claim as to the effect of negligence on the part of the plaintiff, was evidently intended merely to meet an anticipated claim, by the defendant, of such negligence ; but as such a claim was not made by the defendant, it was unnecessary to notice it in the charge ; and that part of the charge which was predicated on the supposition that there was concurring fault or negligence in the plaintiff, might properly7 have been omitted, either as applicable to gross negligence, or a want of ordinary7 or reasonable care and prudence on the part of the plaintiff. The omission of the court to qualify the effect of negligence on the part of the defendant, by stating the effect of negligence in the plaintiff, could not have injured the defendant, since the facts as claimed by him to be proved, called for no such qualification. The_charge, therefore, as applicable to the case, was unexceptionable. Whether, or under what circumstances, the gross negligence of the defendant would be excused, by concurring negligence on the part of the plaintiff, in eases of injuries occasioned by collision, it is unnecessary in this case to consider ; and on a subject where it is so difficult to lay down general*principles without qualification, and where it would be hazardous to attempt to point out with precision all those qualifications, we do not wish to be understood as expressing any opinion not required by the case before us>
For these reasons a new trial is not advised.
In this opinion the other Judges concurred.New trial not to be granted.