Towns are required by statute to keep the highways within their, limits in repair suitable for the travel thereon. Gen. Stats., ch. 69, sec. 1. When an action is brought, under the provisions of this statute, the proper question to be submitted to the jury is, whether the immediate and real cause of the damage to the person injured was the defect or obstruction complained of; or, in the language of the statute, whether the damages happened "by reason of any obstruction, defect, insufficiency, or want of repair, which renders it [the highway] unsuitable for the travel thereon."
The proper inquiry in this case was, whether the want of a suitable culvert in the turn-out leading from the highway to the depot grounds was the prime moving cause of the accident to the plaintiff's team, without the existence of which defect the accident would not have happened; if so, the plaintiff is entitled to recover, and this was a question for the jury. Littleton v. Richardson, 32 N.H. 59.
One cause of the accident was the frightening of the plaintiff's horse. The fright of the horse was caused, not by a defect or obstruction in the highway, but by the engine and car of the railway company. Nor was the horse injured by falling into the culvert in the attempt to avoid the engine. It became material, then, to inquire whether he was thrown upon the railway track in attempting to avoid an insufficient culvert; or, in other words, was the culvert so constructed that the highway was not suitable for the travel thereon? If the jury should find that, notwithstanding the fright of the horse, the injury would not have happened but for the defect in the culvert under the turn-out, — that the insufficient culvert was the direct and proximate cause of the accident, — the plaintiff would be entitled to recover, provided, of course, the conduct of his bailee did not contribute to the accident.
It was contended by the defendants' counsel, in the argument, that a town is not bound to furnish a turn-out for a traveller to get upon the highway; that a town is bound to clear its highways of everything that may impede the onward travel, but that every man must provide the means of ingress and egress as he pleases; that a town has only to make its highways suitable for the public travel thereon.
This position cannot be maintained. In Stack v. Portsmouth, 52 N.H. 224, BELLOWS, C. J., in delivering the opinion of the court, declared the law to be as follows: "Whether the highway is rendered unsafe by an object without its limits, is a question of fact for the jury. If the defect is established, the inquiry is whether the plaintiff was in the proper and reasonable use of it.
"In determining that, the question is immaterial whether the plaintiff was travelling across the highway or length wise of it. Both modes of use are equally necessary, and there can be no doubt that both are lawful, and, for aught we can see, the duty of the town is the same in respect to both. No authority is cited for any distinction in this respect, nor do we find any. The obligation to keep the highway in a reasonably safe condition is for the benefit of all who have occasion to pass over it, in any direction, for the purposes of business, convenience, or *Page 93 pleasure. Such persons are travellers upon the highway, within the meaning of the statute. They are using it for the ordinary and legitimate purposes for which it was made."
We cannot say, as a matter of law, that here was no evidence to be submitted to the jury upon the question whether the defect in the culvert was the proximate and real cause of the injury to the plaintiff's horse. Whenever the question of remote or proximate cause is raised, it becomes a mixed question of law and fact, to be submitted to the jury under proper instructions. Fent v. Co., 59 Ill. 349; Fairbanks v. Kerr, 70 Pa. St. 86; Holden v. Railroad, 30 Vt. 297; Saxton v. Bacon, 31 Vt. 540; Littleton v. Richardson, supra; State v. M. L. R. R., 52 N.H. 528. The cases which give a rational explanation of the doctrine of remote and proximate causes, generally show that it is always for the jury to say whether the damage sustained is what the defendant ought to have expected, in the exercise of reasonable care and discretion. The defendant is bound to use the care which the consequences, naturally and reasonably to be expected to follow from negligence, require, and, failing in that, is bound to pay such damages as his negligence has occasioned. According to this view, it would be for the jury to say whether, if the highway were defective, the injury was such as in the exercise of a reasonable discretion ought to have been anticipated. Cate v. Cate, 50 N.H. 144.
As this question should have been submitted to the jury, the nonsuit must be set aside, and the plaintiff must have judgment according to the provisions of the reserved case.