Dissenting opinion by
Ross, J.. I find myself unable to concur in the judgment rendered in this case by the majority of the court. On the facts stated in the exceptions, it seems to me that the judgment is a practical unsettling of the law of the liability of towns for the condition of their highways as heretofore determined and announced by this court, and greatly enlarges that liability as it existed under the statute as it stood at the time of the injury. Since then the statute has been so far modified, that at present they are liable to travellers for injuries sustained through insufficiencies only in the culverts and bridges of their highways. The question involved in the decision of this case is still one of considerable practical importance. The exceptions state : “ The plaintiff’s testimony showed that the highway at the place where the injury occurred was fully three rods wide, and that the wrought or travelled part of the same was thirty-eight feet in width; that at said point the highway was slightly descending, going in a southerly direction, and that on the westerly side there was a steep embankment in the vicinity of twenty-two feet high and several rods long, and that at the foot of the same there was a mill pond, ánd that there was no muniment or railing to prevent going off said embankment ; that the brink of said embankment was six inches beyond the westerly limit of said highway as located and established, and defendant’s evidence showed it somewhat more ; and that the highway was substantially level to the brink, there being no ditch; and that this injury occurred in the night time of the day of A. D. 1877, while driving over said road going south ; that said highway at and north of the place of accident was not straight, but curved to the east so that a straight line established the centre of the travelled track at a *594about ten rods north of the place of accident if extended in a straight course southerly would go off the bank described just southerly of the place of accident; that in consequence of the darkness he was unable to see the road and its surroundings, and drove off the brink of said embankment at the point before described.” Upon these facts appearing from the plaintiff’s own showing, the defendant requested the court to direct a verdict in its favor. The court refused this request. I think the request should have been granted. Observe that the place of danger was wholly without the limits of the highway, that the only defect complained of was the absence of a railing or muniment to guard against going over the embankment, and that “ in consequence of the darkness the plaintiff was unable to see the road and its surroundings, and drove off the brink of said embankment.” It is to be noticed that the cause for the plaintiff’s departure from the wrought and travelled portion of the highway and for driving over the embankment located outside of the limits of the highway, was his inability to see the travelled track and its surroundings,— or the darkness. Hence it follows if this decision is to obtain and become the established law of the State, whenever the traveller on account of the darkness departs from a travelled track of sufficient width and smoothness to accommodate and safely carry the prudent traveller in the daylight, and runs against a hitching-post, lamp-post, shade-tree, stump, rock, bank, or into a ditch or other place likely to overturn his carriage, located on the margins of the highway or in the immediate proximity to such margins, and receives an injury to himself or team, the town is liable. When the facts are not in dispute the liability of the town thereon is a question of -law to be determined by the court, and not of fact for the consideration of the jury. It was so held in Abbott v. Wolcott, 38 Vt. 666. In Swift v. Newbury, 36 Vt. 355, it is said : “ We do not controvert the proposition that, under certain circumstan-ces where there is no dispute or controversy about the facts the want of proper care in the traveller may be inferred as a conclusion of law.” Cases are cited sustaining the proposition. In Barber v. Essex, 27 Vt. 62, the late Chief Justice Redfield says: “ Questions of negligence where the law has settled no rule, of *595diligence can never be determined as a matter of law, except where the testimony is all one way. If there is no testimony tending to show negligence, then it may be determined by the court there was no negligence. . . Or if the testimony is uncontradicted and makes a clear case of negligence, it becomes matter of law oñly.” The defendant’s request was based on- the facts as shown by the plaintiff in regard to which there was no controversy. On these authorities, as well as upon general principle, if the facts were such as called for it, it was the duty of the court to have complied with the request. Do the facts shown by the plaintiff’s testimony show a liability on the part of the town for the injury sustained by the plaintiff ? I think not. It is to be observed that the wrought portion of the highway was smooth and without imperfection, thirty-eight feet wide — wide enough for four single teams to drive abreast. In other words, as the statute was at the time of this accident, towns to escape liability must either sufficiently light their highways to enable the traveller to see and follow the travelled track, or must enclose such track so that when used in the night the traveller cannot pass therefrom upon objects of danger on the margins of the highway, or in the immediate proximity thereto. If it renders.passable the whole width of the highway it must then securely fence it so that the traveller may not wander from it when the darkness is too great to enable him to follow it. There is not, probably within the State, a half mile of continuous highway that is not insufficient and out of repair under this decision. Every place of danger on the margins of the highway or in the immediate proximity thereto, unguarded by a railing or muniment becomes an insufficiency whenever the darkness is so great that the traveller is unable to see the road and its surroundings, though they may not be such in the daytime. I do not think it would be claimed that this highway was insufficient as regards this plaintiff if he had driven or gone over the embankment under like circumstances in the day time. If the exceptions had read: “ That in consequence of the daylight he was able to see the road and its surroundings, and drove off the brink of said embankment at the point before described,” I do not think, any one would claim it would not have been the duty of the court to *596have ordered a verdict for the town. I do not think the darkness operated to change the sufficiency of the highway or the liability of the town. I am aware that my associates who concur in the judgment, deny that it has any such scope. But no analysis which I can give to the facts brings its scope within narrower limits. No necessity for the plaintiff’s departure from the wrought portion of the highway, or the highway limits, except the darkness, is disclosed. There was no giving away of a nut or bolt of the carriage, or breaking of the harness, no fright or shying of the horse, no meeting or passing of another team ; in short, there was nothing that compelled, or in the least influenced, the plaintiff’s departure from the smooth travelled track except the darkness. Hence, granting that the highway was insufficient by reason of the lack of a railing or muniment, as against a traveller who should be found out of the road and off the embankment by an accident or some necessity, the plaintiff’s going off there was not from any such cause, unless darkness be such cause. From that cause and that alone in the language of the exceptions, “ he was unable to see the road and its surroundings, and drove off the brink of said embankment.” No decision in this State, heretofore, has gone so far as to hold that a party, who departed from the travelled track of the highway solely by reason of darkness, or his inability from that cause to see and follow the travelled track, and sustained an injury upon a dangerous object located on the margin of the highway or in the field or lot immediately contiguous thereto, could recover. In Hunt & Wife v. Pownal, 9 Vt. 411, it was held that where the plaintiff was forced out of an insufficiently guarded travelled track over an embankment by the breaking of a nut or bolt, and received injuries, the town was liable. The doctrine of that case and all subsequent cases which have adopted it, is, that an injury sustained from the combined result of an insufficiency of a highway, and an accident which could not have been foreseen and provided against by the exercise of common prudence, the town must compensate. But it has never before been held in this State, or elsewhere, so far as I am aware, that darkness was such an accident. It would seem that the traveller could better provide against the darkness than the town. He knows when the *597darkness so overshadows him that he cannot see the road and its surroundings, and can reasonably provide against it. The town never can know when such darkness will be present, or when the traveller will have occasion to use the road surrounded by such darkness ; nor can it secure him against it without great and unreasonable expense. I do not think, the statute was ever intended to impose any such burden or liability upon towns. It has been usually, and I might say universally, held, that while the statute imposes the duty upon towns to make and maintain their highways so that they should be reasonably safe for the safe passage of the prudent traveller thereon, including such accidents as might reasonably be expected to befall him, such as the breaking of his carriage or harness, or the shying or fright of his horse, when these had been selected and used with prudence, or being forced from the travelled track by meeting or passing another team either under control or at large, it was equally the duty of the traveller to find, and keep within the travelled and wrought portion of the highway, and to use the same prudently and not to depart therefrom except from actual necessity. In Rice v. Montpelier, 19 Vt. 470, a hole had been dug in the margin of the highway and near the travelled track, of which the town had notice, and the plaintiff ran into it upon a dark night, whereby his horse and sleigh were injured. The travelled track was'twenty to thirty feet wide and level for travel. “ The defendant requested the court to charge the jury, as matter of law, that if the plaintiff in a dark night went out of the travelled path of the road for the purpose of getting upon snow or “ for his own comfort and convenience, and run into the hole, and the injury happened, he could not recover.” The court refused so to charge, and left the whole question to the jury to find whether the road was reasonably safe, and whether the plaintiff was wanting in common care and prudence in the use of it. This plaintiff had a verdict. This court reversed the judgment, and held, in summing up, this languageWe think the jury should have been instructed that if they found that the plaintiff diverged from the travelled road without necessity, but merely for the purpose of having the benefit of the snow, or if the horse took the same direction from natural instinct or from *598inability to see the road on account of the darkness, the town should not be held responsible for the consequences which ensued.” The doctrine thus announced has until the rendition of this judgment been considered the la,w of the State.
It has been recognized as such in Cassidy v. Stochbridge, 21 Vt. 391; Morse et ux. v. Richmond, 41 Vt. 435, and Glidden v. Reading, 38 Vt. 52. In the last case it is held that it is not necessary that the traveller should be forced from the travelled track, but that he may voluntarily leave it from necessity. . In that case the necessity was, — he being blind, — the avoidance of a team which he heard coming in the darkness towards him. But this falls exactly within the doctrine announced in Rice v. Montpelier, supra, in which it is held that the traveller could not recover for an injury sustained upon the margin of the highway, if he diverged from the travelled road without necessity, and “ inability to see the road on account of the darkness ” is held not to be a necessity for such divergence. My associates have passed over this feature of the case, with the single remark : “ This is in no just sense a case of voluntary departure, nor straying from the way, like many of the cases relied upon by the defendant, and the law of those cases is not applicable. It cannot be said, as argued, that the plaintiff ‘ intended the act he did though he did not intend the consequences.’ He intended neither. .The case affords no warrant for saying he did. By reason of the darkness he could not see where he was going, and accidentally drove off the bank. That is the case.” I quite agree, “ that is the case ; but am unable to see — perhaps because darkness has fallen upon me — why the doctrine of Rice v. Montpelier is not applicable, when it is there said in substance, if the plaintiff’s departure from the road was occasioned by an “ inability to see the road on account of the darkness ” he could not recover. It is asserted that the plaintiff accidentally drove off the bank ” because by reason of the darkness he could not see wherh he was going.” Webster defines “ accident” as “ an event that takes place without one’s foresight' or expectation.” It may well be said that his going over the embankment was without the foresight or expectation of the'plaintiff, and so accidental. But it cannot well be said *599that the darkness came upon the plaintiff “ without foresight or expectation.” That was no accident to him. There was not, therefore, in any just sense, an accident concurring with an insufficiency of the highway, which compelled or influenced the plaintiff’s departure from the travelled track to his injury, as in Hunt v. Pownal, supra. In Morse and wife v. Richmond, in which the court had under consideration the duty of towns in regard to .the margin of their highways, the court plainly indicates that towns are, or as the statute then stood, were, not under a duty to travellers to keep the margins of their highways entirely free from places of danger, and, substantially, because it is the duty of the traveller to keep in the wrought portion or travelled track of the highway. In a country like ours, of hillsides and valleys, filled with rocks and stumps, where ditches and banks are an absolute necessity, it would be almost an impossibility to construct and maintain highways, so that their margins, or places in “ dangerous proximity ” thereto, would be entirely free from objects endangering travel if encountered by it. In a note to that case by the learned late Chief Justice Redfield, he says: “ All (statutes) substantially agree in requiring the municipality to provide and maintain a safe and convenient passage for travellers. This, unquestionably, primarily applies to the travelled portion of the highway. So that one who for mere convenience, and without actual necessity, departs from the travelled portion of the highway cannot recover for any injury he may sustain thereby in consequence of obstructions to passage.” I have never understood that a railing or muniment was required to protect the traveller from a dangerous place or object on the margin of the highway unless his departure from the travelled track was from necessity. In Bagley v. Ludlow, 41 Vt. 425 ; Swift v. Newbury, supra ; Barber v. Essex, 27 Vt. 62 ; Glidden v. Reading, 38 Vt. 52, and Cassidy v. Stockbridge, 21 Vt. 391, the element of darkness is found, but in none of them is it given the force of a necessity compelling or warranting the departure of the traveller from the wrought portion of the highway; but ■ there was in each in which there was such departure another cause which compelled or rendered a departure therefrom a necessity. This element is given *600effect only upon the question of whether the plaintiff was at the time in the exercise of common care and prudence.' It is plainly intimated that darkness increases the care and prudence to be exercised by the traveller ; and in Barber v. Essex, supra, it is intimated that the darkness might be so great as to render it imprudent for the traveller to proceed without a light. ‘ On the other question, largely discussed in the opinion of the court and at the bar, whether a town is bound to protect the traveller against an object of danger in the immediate proximity to but not within the limits of the highway, when necessarily brought in contact with it,.I express no decided opinion. The cases from Massachusetts show the difficulty of determining upon any safe rule as to what places of that character shall be adjudged to be within “ dangerous proximity ” of the highway. • While good reasons can be given for holding towns liable for injuries received at such places when brought in contact with them from actual necessity, there is very considerable difficulty in drawing any safe line marking the limit of the liability of towns except at the limits of the highway. On the other point I cannot but think that my associates have made a new and unwarranted departure in the law of the liabilities of towns for the condition of their highways, and of the rights of travellers in using- them; and am compelled to dissent from the affirmance of the judgment rendered by the County Court. I should reverse that judgment.