The opinion of the Court was drawn up by
Weston C. J.We are of opinion, that the presiding Judge should not have ordered a nonsuit in this case; but that it should have been submitted to the jury. The evidence, arising from the wheel tracks, indicate that the horse had become unmanageable. It is against all experience, that a man in his senses should have had any voluntary agency in the business.
It is contended, that the plaintiff is bound affirmatively, to prove due care on his part. It may well be doubted, whether this should be required in all cases. If direct and positive proof to this effect is essential, a party who sustains an injury, by reason of a defect *382in the highway, when alone, or when the transaction was witnessed by no other eye, would be without remedy.
It is in proof, that -the horse was usually kind. The condition of the road and the bridge was fully presented to the eye of the traveler. The want of railing on the bridge could not fail to admonish the plaintiff, that care was necessary for his own safety. In the absence of all opposing proof, it may not be too much to infer care from common experience, when essential to personal security. The erratic and dangerous movement of the carriage, it may be presumed the plaintiff would have prevented, if he could. It would be most unreasonable to suppose, that he voluntarily encountered the hazard, for the sake of a remedy against the town, in which he cannot by law recover any thing beyond the actual damage. It is a question proper for the consideration of a jury, upon the evidence reported.
Exceptions sustained.