A servant of the plaintiff was driving his horse before a carriage on a public highway in the town of Norfolk, over which the defendants had no control, and which was then without defect. While so driving, from some secret defect, and without fault on the part of the plaintiff or his servant, the iron band attaching the end of one of the shafts to the axle broke, and the shaft, with the cross bar, fell upon the horse’s heels. The horse, very much excited and frightened, at once commenced to run,, and in a short time the servant, in efforts to restrain him, was thrown from the carriage; after which the horse, with great speed and without control, *243ran from the public highway upon private property outside of the limits of any highway, and from thence upon the defend^ ants’ turnpike, passing on to the turnpike at a point about thirty feet distant from one of the defendants’ bridges, which they were bound to keep in repair. The horse, still excited and without control, continued liis course on the turnpike, and on to the bridge, and having passed about twenty feet thereon, was injured by reason of falling from the side of the same on account of a defect in the railing, which the defendants had carelessly and negligently failed to keep in proper repair.
The plaintiff’s servant was thrown from the carriage, while .on the public highway, and at a place about eighty rods distant from the turnpike.
There is nothing in the case showing that the horse was vicious or unfitted'to encounter the risks of ordinary public travel, nor that the plaintiff or his servant was negligent in not knowing of the secret defect in the'Carriage, nor that there was any negligence or want of reasonable care on the part of either, which at all contributed to the injury. But it does appear that the defendants’ negligence in not keeping the railing of their bridge in proper repair, combined with an accident for which neither party was responsible, was the cause of the injury.
Under these circumstances who ought to sustain the loss, the plaintiff or the defendants ?
The defendants did not seriously urge the secret defect as absolving them from liability, and, as wo think, very properly; for a traveller cannot be regarded as an insurer of the strength of his carriage and harness at all times and under all circumstances. The most that can be required of him is, that he exercise ordinary care and prudence with reference to them in their purchase and use, and in the attention necessarily to be given to them in order that he may pass safely over highways and bridges not in a defective condition. In this regard it appears that the plaintiff performed his entire duty.
While essentially admitting this, the defendants claim that the plaintiff, seeking to recover damages for the injury, must *244show that he exercised due care to avoid it at the very time when, and tire place where, the injury happened; and they deny his right to recover in this case because by accident he was, then and there, prevented from exercising any care, and consequently contributed to his own injury.
This claim brings into consideration the question, whether the defendants are relieved from liability for an injury caused by their negligence, combined with an accident for which no responsibility attaches to either party.
The plaintiff performed no negligent act, nor can we see that he failed to do any thing’ by the performance of -which the injury might have been avoided; he was providentially prevented from, acting. This falls far short of that contributory negligence which excuses the defendants.
We may conjecture that if the servant had remained with his horse and continued in control of him, the injury might have been avoided.
The failure of a traveller to be continually present with his team up to the time and place of injury, when that failure proceeds from some cause entirely beyond his control, and not from any negligence on his part, ought not to impose upon him the loss from such injury, particularly when the direct cause of the same is the negligence of some other party: the loss should be charged upon the party guilty of the first and only negligence with reference to the matter.
In our judgment the proper rule is. this: — If the plaintiff is in the exercise of ordinary care and prudence, and the injury is attributable to the negligence of the defendants, combined with some accidental cause, to which the plaintiff has not negligently contributed, the defendants are liable.
Nor will the fact that the horse of the plaintiff was uncontrolled for some distance before the injury, change or in any way affect the liability of the defendants.
The statute laws of our state impose upon towns and corporations the duty to keep their highways and bridges with sufficient railings in suitable repair. This is a positive duty, and the safety of the travelling community requires that it should be rigidly enforced. When they have been almost *245criminally remiss in tlie performance of this duty, and injuries happen from the insufficiency of their bridges or highways, they ought not to escape the consequences of such injuries unless upon the plainest principles of law. While we agree that the defendants were not bound to provide such railings for their bridges as would restrain all uncontrolled or unmanageable animals passing over the same, we yet hold them to their duty with reference to sufficient repairs and to their liability for injuries occasioned by want of the same.
The questions arising in this case have been before the courts of some of our sister states, and the weight of authority seems to be in favor of the result to which we have come.
In Maine it has been liolden that a town or corporation is not liable under circumstances similar to those of the present case.
In Massachusetts there have been decisions somewhat conflicting, but the law seems now to be settled that the defendants are liolden except when the team becomes unmanageable outside of the limits of their highway, or from fright at some object which is not a defect in the same.
In Vermont the adjudications lead logically to the conclusions to which we have come. In Hunt v. Pownal, 9 Vermont, 411, the learned Judge Redfield, in giving the opinion, says : — “ In every case of damage occurring on the highway, we could suppose a state of circumstances in which the injury would not have occurred. If the team had not been too young or active, or too old, or too headstrong, or the harness had not been defective, or the carriage insufficient, no loss would have intervened. It is to guard against these constantly recurring accidents that towns are required to guard in building highways. The traveller is not bound to see to it that his carriage and diarness are always perfect, and his team of- the most manageable character and in the most perfect training, before he ventures upon the highway. If he could always be sure of this he would not require any further guaranty of his safety unless the road were absolutely impassable. If the plaintiff is in the exercise of ordinary care and prudence, and the injury is attributable to the in*246sufficiency of the road conspiring with some accidental cause, the defendants are liable.”
The charge of the judge in the court below was substantially in accordance with these views. A new trial is therefore not advised.
In this opinion the other judges concurred.
Judge Minor of the Superior Court, sat in the case in the place of Chief Justice Seymour, who having been consulted in the ease when at the bar, did not sit.