This is an action upon that portion of the statute, relating to highways and bridges, which provides, “ that if any horse, or other beast, or any cart, carriage, or other property, shall receive any injury, or damage, by means of any defective road or bridge, the town, person, persons, or corporation, which ought to keep such road, or bridge, in repair, shall pay to the owner of such beast, or property, just damages.” Stat. p. 582 Ed. 1854. While the plaintiff was passing the defendants’ bridge, his horse was injured; and the verdict, under the charge of the court, finds that the injury was caused by reason of the bridge being defective, through the culpable neglect of the defendants, in suffering it to be out of repair, and unsafe. On the subject of damages, the court instructed the jury, that if they found the defendants guilty, upon the principle of liability just stated by the court—the principle of a culpable neglect, in suffering the bridge to be out of repair, and unsafe—they were not necessarily confined, in estimating damages, to the exact deterioration of the value of the horse, caused by the injury, but might take into consideration the fact, that the plaintiff had been put to the necessity of seeking redress, in a court of justice; also informing them, *497that they would not take into consideration taxable costs. The defendants claim that the charge, in respect to damages, is incorrect. They insist that, as the action is founded on a statute, it is in the nature of an action of debt, and, consequently, only such damages can be given, as would be applicable to a breach of contract, where the damages were unliquidated. We do not yield our assent to this proposition. The reasoning, that, because the defendants accepted of their charter, they contracted to perform its conditions,—(one of which was, to maintain the bridge in good repair),— therefore the neglect to do this is a mere breach of contract, is too artificial, and proves too much for the exigencies of the case. The tortious character of an act is neither changed, nor weakened, because there is superadded to the neglect of duty, a breach of promise, either express, or implied. There was, in this case, a culpable neglect of duty, which was directly calculated to endanger the safety of travellers over the bridge ; to call such a neglect a simple breach of a contract with the public, to keep the bridge in repair, is as contrary to law, as to the dictates of common sense. The carelessness of stage proprietors, and other carriers, by which persons are injured, is a breach of the contract to carry safely; but it is something more than that; and we see no real distinction between the use of an unsafe stage-coach, or rail-car, and the use of an unsafe bridge. We think, therefore, that the court was correct, in applying to the case, in respect to the damages, the principles applicable to actions on the case, for consequential injuries, and not considering it in the nature of an action of debt. The rule, adopted by the court below, we understand to be in conformity with the case of Linsley v. Bushnell, 15 Conn. R., 225, which must be considered as settling the law of Connecticut, whatever may be the prevailing doctrine elsewhere. The authorities, therefore, referred to by the defendants, which are contrary to our practice, as recognized in that case, can have no bearing upon the question.
*498It is said, however, that the court went further, on the subject of vindictive damages, than our practice, sanctioned by that case, will justify. We do not think so. The court did not tell the jury that they were bound to take into consideration the necessary expenses of seeking redress in a court of justice; but only, that they might,—that is, had aright to do so. Whether the jury would enhance the damages on this account, or not, would of course depend upon whether there was that degree of wantonness in the neglect of duty, which, in their opinion, called for vindictive damages. The doctrine applies to all cases, where the injury is wanton, or malicious, whether the result of tortious acts, or of gross, or wilful negligence, or carelessness. Of this the jury must judge, and, in practice, they will not assess vindictive damages, unless there is a degree of wantonness in the act, or the neglect, which, in their opinion, calls for such damages. Indeed, we believe the general practice is to advise juries not to increase the damages beyond a fair compensation for the actual injury, unless the transaction is of that wanton character, which renders it unjust to the plaintiff, that he should be at the expense of compelling the defendant to do him justice; and, where the parties stand in the relation of bona fide claimants to property, and are honestly contesting their rights to it, we believe there is no danger that a jury will assess vindictive damages, in favor of either party. Our practice on this subject, is illustrated in the case of Seger v. Barkhampsted, 22 Conn. R., 293, which was also an action against the town, for injuries caused by a defective bridge. The jury enquired of the court, whether they had a right to indemnify the plaintiff, for his reasonable expenses in prosecuting his action, and were informed that, in actions on this statute, unless there was evidence of wanton and wilful neglect of duty on the part of the town, it would not be proper forthem to do so. Of course it was implied in this instruction, that, in cases where there was evidence of wanton and *499wilful neglect of duty, it would be proper to assess such damages.
The court charged the jury that, if they found the bridge out of repair, and unfit for use, at the time, and this was the cause of the injury, the defendants were called upon to show some satisfactory reason for it, to rebut any inference of omission and neglect of duty.
There is nothing more in this, than a statement, in other words, of the substance of the statute, which requires that an injury, caused by a defective bridge, be compensated for by the town, or other corporation, or person, that ought to keep such bridge in repair. Of course it is understood that there must be a degree of negligence on the part of the party who ought to keep the bridge in repair, but the statute seems to infer this negligence, in the first instance, from the mere fact, that it is found to be out of repair, or defective, and to throw upon the defendant the burden of rebutting this presumption.
In this opinion, the other Judges, Storrs & Ellsworth, concurred.
New trial not granted.