We perceive no error in the charge under which this cause was submitted to the jury. On the other hand, we think the principles of law laid down by the judge fully sustained by the authorities, as well as by equity and good sense.
If the defendants, without a charter, had gone into the highway at this place, and made a ditch three and a half feet wide and a foot and a half deep, and left it uncovered, and a person passing that way had fallen into it, without any neglect or presumption on his part, no one will doubt but that he could recover for the injury he had sustained. This is substantially the case before us, if we are correct in our view of it.
The defendants’ charter gave them no authority to make an alteration in this highway without restoring it substantially to its former condition and usefulness. This duty of the defendants applied not merely to the beaten path, which seems to be the claim of the defendants’ counsel, but to the highway throughout, so far as they had altered it, and the people had occasion still to pass over it, in one direction or another; the persons so using the highway being of course bound to use reasonable care in passing over it, which was to be judged of by the circumstances of the particular case. At the place of intersection the highway is twelve rods wide, and the railroad is laid directly across it, upon a level, very nearly, with the high*439way itself. Why, now, should not the defendants place the whole of the highway, as well as a part of it, in such a condition that it could be safely and conveniently used by the people of the village ? Why leave in it any where uncovered ditches and culverts, so far rendering it unsafe for foot people to pass along or across it ? If the people have occasion, why may they not pass as freely as before, giving to the defendants the exclusive use of their chartered franchise ? We do not say that the defendants, whenever embankments are necessarily raised in a highway, must construct them so as to allow the public to drive along them, or even over them, at every place ; this would be unreasonable and useless ; but for aught that appears here, and doubtless such was the opinion of the jury, the whole length of the railroad within the highway could have been made safe for travelers, as has been done, at a trifling expense, since the accident. The plaintiff, exercising ordinary care, had a right to pass where hq, did pass, and at such times, by day or by night, as business called him ; and-it is not possible that the defendants, under such circumstances, can properly leave dangerous culverts or pitfalls uncovered. Even at common law the defendants would be required to guard such a dangerous place, and secure the public against injury from such exposure.
We do not advise a new trial.
In this opinion the other judges concurred.
New trial not advised.