It was for the jury to say, under proper instructions, whether the road at the point where the accident happened, was in a reasonably safe and suitable condition, considering the kind and amount of travel usually passing over it. Johnson v. Haverhill, 35 N.H. 74; Chamberlain v. Enfield,43 N.H. 356, and cases cited. The instruction requested was, therefore, properly refused.
The instruction excepted to has reference to the question of due care by the plaintiff as well as the condition of the road. The defendants had claimed in argument, as matter of law, that if there was a roadbed, well wrought, and free from all obstructions and defects west of the stone, of the width of eighteen feet, sufficient for the passing thereon had the public and the plaintiff chosen to use it this would be all that was required of the town, and the plaintiff could not recover. Now, the width and condition of the road west of the stone were matters very proper to be considered by the jury upon the question whether a man, in the exercise of average prudence, would have run upon the stone. But the legal proposition, that the town were not liable in any event if there was a sufficient roadway west of the stone, was properly denied by the court; and it was proper, and probably necessary, that the bearing of the circumstance that almost the entire travel went on the east side of the road-bed and hear the stone, should be explained to the jury. That circumstance had an important hearing on the question of the plaintiff's case. I do not see any legal fault in the instruction. It amounts to no more than a denial of the defendants' untenable claim that as matter of law, they could not be held because there was a sufficient road west of the stone which the plaintiff might have used had he chosen, and so avoided the accident. It was for the jury and not the court to say whether, under all the circumstances shown, the stone constituted an obstruction or defect. It was also for the jury to say whether the plaintiff was guilty of want of ordinary care in running upon it. The jury were fully instructed as to *Page 432 the law bearing upon both these points, and no objection was taken. The defendants might argue to the jury, as they doubtless did, that they were not liable, for both these reasons, — both because the road was sufficient, and because the plaintiff was careless in running on to the stone; but, surely, it did not lie in their mouths to claim either point in their favor as matter of law.
Exceptions overruled.