I. We are unable to bold, as matter of law, either that the highway, at the point where the accident happened, was insufficient, or that the plaintiff was guilty of negligence which contributed to the injuries of which he complains. These propositions of fact were properly submitted to the jury for their determination; and there is sufficient testimony preserved in the bill of exceptions to sustain findings of a jury upon them either way.
II. The only remaining question necessary to be considered, arises on the instructions. After instructing the jury that it is the duty of the town to maintain its highways in a reasonably safe condition for travel thereon, the learned circuit judge laid down a test, by the application of which the jury were to determine whether the highway, where the accident happened, was or was not sufficient. The jury were instructed, in effect, that the town is not liable to respond in damages to the plaintiff, if the highway was in such condition that persons of ordinary care, circumspection, foresight and judgment, would think that an accident would not be likely to happen to one traveling thereon with ordinary care. This is stating, in anothef form, the proposition that a highway which is equal to this test, is sufficient — is reasonably safe.
We think the testan erroneous one. A person of the character mentioned might well think that an accident would not be liable to happen at a given point in a highway, to one traveling with ordinary care, and yet the highway at that point may be insufficient and out of repair. The law is that a town must keep its highways in a reasonably safe condition for travel thereon, and it cannot shield itself from liability for the nonperformance of that duty by the plea, that the defects in its highways are of such a character that ordinarily careful and circumspect persons might think that accidents would not be liable to happen by reason, of such defects to persons traveling with ordinary care. The alleged defects may not be, apparently, very dangerous, and yet they may 'constitute an *700insufficiency in tbe highway. The jury should be left to determine from the evidence of its condition, whether the highway is or is not in a reasonably safe condition for travel, and should not be restricted (as they were in the present case) to the mere inquiry whether a certain class of persons may or may not think that accidents are liable to befall ordinarily careful travelers at the place of the alleged insufficiency, and by reason thereof.
Because this error in the instruction may have misled the jury, it is fatal to the judgment.
By the Oowt. — Judgment reversed, and cause remanded for a new trial.