The motion shows that there was evidence enough adduced on the trial tending to show that the load, on which the plaintiff was riding at the time of the accident, was so unusual and extraordinary, both in weight and bulk, as to call on the court, in its charge to the jury, to give the defendant the benefit of the rules of law applicable to such fact, if the fact should be found. The attention of the court was called' to this point in the fourth and fifth requests of the defendants, which were as follows:—
“4th. If the load was unusual and extraordinary, as to its bulk or weight, and not suitable or adapted to a way opened and prepared for the public use in the common intercourse of society, and in the transaction of the usual and ordinary affairs of business on said road, the plaintiff took every possible risk of loss and damage upon'himself.
*73. 5th. “ That in such case the plaintiff cannot recover for injuries sustained, although they, were the direct results of defects and imperfections in the bridge.”
The abstract propositions of law applicable generally to the case had been previously stated correctly. And in assenting to the correctness of the defendants’ first request, the principle really involved in the fourth request had been virtually sanctioned by the court, although the jury would hardly appreciate it without further explanation. But when the court was called upon to apply the law specifically to the facts assumed to exist in the case, it would seem that the jury must have been misled by the answer. The comments upon the requests as made by the court to the jury amounted to a denial of the proposition of law involved. The jury were allowed to consider the facts only as bearing on the questions of ordinary care on the part of the plaintiff, and whether the bridge was. defective. The obvious implication would be that if they found these two facts in favor of the plaintiff, the existence-'of such facts as the requests assumed to exist would not prevent a recovery. The error consisted in ignoring the bearing • which the facts referred to might have as furnishing the-measure and limit of the town’s duty and consequent liability in the premises. The liability, if any, was only for some-culpable omission of duty causing the injury.
The standard of responsibility can never bo more extensive • than the rule of duty. And the limit of duty on the part of a town falls far short of making its highways absolutely safe ■ under all circumstances, even for those who use them prop- ■ erly. And where the use is one that reasonable care and prudence could never have anticipated there would be no duty on the town at all in reference to it.
If a ponderous locomotive steam-engine should be propelled! over a town bridge, no one we presume would claim that the. town ought to have provided for it. This of course is an extreme case, but it illustrates a principle applicable as well to any unusual and extraordinary load, however propelled along a road, not reasonably to be expected to pass over it. Our reasoning results in the conclusion that if a- person uses *74the town bridges and roads in any way that clearly transcends the limits of the town’s duty, he must necessarily take the risk upon himself. This was the principle contained in the fourth request which was overlooked in the instructions to the jury. It was a proposition sound in law and adapted to the issue, and is fully sustained by the opinion of the court in Gregory v. Adams, 14 Gray, 242. In that case Merrick, J., says (p. 248) : “ This is the measure and extent of the obligation of towns in reference to the support and maintenance of public highways. They are not required to make preparations for the safety or convenience of. those who undertake to use those ways in an unusual or extraordinary manner, involving peculiar and special peril and danger, whether it be in respect to the kind or character of animals led or driven, or the magnitude or construction of carriages used, or the bulk or weight of property transported. And if any person undertakes to use or travel upon a public highway in an unusual or extraordinary manner, or with animals, vehicles or freight not suitable or adapted to a way opened and prepared for the public use in the common intercourse of society and in the transaction of usual and ordinary affairs of business, he then takes every possible risk of loss and damage upon himself; and lie can have no remedy against the town to recover recompense for injuries sustained, although they be the direct result of defects and imperfections in a way for which it would be responsible in case of injury to individuals in the lawful and proper use of it.”
Other cases in Massachusetts recognize similar principles .as applicable to a different state of facts. Blodgett v. City of Boston, 8 Allen, 237, and cases there referred to.
The parties made no requests in relation to the damages. .And it may not bo perfectly clear that wo ought to grant a .new trial on account'of the charge as given on this subject. It was however somewhat objectionable as not giving the jury any rule at all on the subject except “ their own sense of right and justice,” and that too in a case where sympathy for the plaintiff would naturally produce a powerful effect. There was danger that the jury might take the charge as meaning *75that their power over the damages was practically unlimited by any other rule. It would have been safer and better to have told the jury that the damages should bo compensatory merely for the plaintiffs personal injury and sufferings, unless they found gross negligence, in which case they might increase the amount by considering the expenses of the plaintiffs suit, not including the taxable costs. Linsley v. Bushnell, 15 Conn., 255; Beecher v. Derby Bridge Co., 24 id., 491; St. Peters Church v. Beach, 26 id., 356; Dibble v. Morris, id., 416; Platt v. Brown, 30 id., 336; Welch v. Durand, 36 id., 182.
We do not deem it necessary to discuss the question whether the omission of the court to charge in writing as requested would furnish sufficient ground for a new trial. The question is one not likely to occur again. The omission in this case was accidental, resulting from mere 'mistake and inadvertence on the part of the court.
It may be well however to remark that the statute on this subject (General Statutes, p. 442, sec. 2,) was enacted for the benefit of the parties litigant, that there might be no disputes as to the precise terms of the charge, and that the ground for a motion to review it might not be lost by any failure of memory in the judge. The statute is therefore mandatory, and not merely directory, and must of course be obeyed.
We see no good ground for the exceptions taken by the defendants to the rulings of the court relative to the admission and rejection of evidence, unless in the case of Norris Holcomb, whose evidence we think was admissible for the purpose of affecting the testimony of R. D. Case, the owner of the team in question, who, having been called by the plaintiff, testified that the load in question was a proper and reasonable one, and by way of supporting his opinion he was allowed to add, that he had been accustomed to draw loads of from three to eight tons weight through the neighboring towns, and had never broken through any bridge but this. This was not such a collateral and purely independent fact as by the rules of evidence is not allowed to be-contradicted. It had some bearing on the reasonableness of the load, which *76was a prominent and important question at issue in the case. And if' it liad appeared from the testimony of Holcomb that the loads drawn by Case’s teams through the adjoining towns had broken through the sluices or seriously injured the roads, it would have taken away the only foundation given by him for his opinion that the load in question was reasonable and proper.
The ruling of the court admitting as evidence the statements of the plaintiff made to his physician, as to the character and seat of his sensations, for the purpose of receiving medical advice and treatment, was correct, and is abundantly supported by legal authorities. Barber v. Merriam, 11 Allen, 322; Howe v. Plainfield, 41 N. Hamp., 135; Perkins v. Concord R. R. Co., 44 id., 223; Kent v. Town of Lincoln, 32 Verm., 591; Caldwell v. Murphy, 1 Kernan, 416; Denton v. The State, 1 Swan (Tenn.), 279.
A new trial is advised.
In this opinion the other judges concurred.