delivered the opinion of the Court. 1. In regard to the first reason assigned for a new trial, we are of opinion, that the damages assessed are not so excessive and unreasonable as to warrant the interference of the Court in a matter which is peculiarly within the province of the jury to determine. In all cases where there is no rule of law regulating the assessment of damages, and the amount does not depend on computation, the judgment of the jury and not the opinion of the Court is to govern, unless the damages are so excessive as to warrant the belief that the jury must have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the case. In the present case the plaintiff was exposed to the imminent peril of his life, to great bodily and mental suffering, and we cannot say that the sum assessed by the jury exceeds a reasonable compensation. We do not consider whether or not we should have assessed the same amount of damages if the case had been submitted to the Court to decide ; for in a case like the present, men of sound judgment may differ not a little in estimating the compensation which the circumstances of the injury would justify ; and it is the judgment of the jury, and not that of the Court, which must govern. To justify the interposition of the Court the damages must be *548manifestly exorbitant; and this we cannot say in the present case.
2. The exception taken to the charge of the judge as to the burden of proof, is not material, because, if the charge was erroneous in this respect, it would furnish no reason for a new trial, the jury having found that the bridge was defective and not in good repair, and it matters not whether there were one or more defects, which caused the injury ; in either case the damages would be the same. If however this exception were material, I apprehend it would be found, that the charge was perfectly correct. The defendants are required by law to keep their lamps lighted, and certainly it is for them to show the reason why they did not comply with the law ; and this was impliedly admitted in the argument of the cause by the defendants’ counsel. The objection made in the argument was, that the charge was not sufficiently limited as to the degree of negligence which would render the defendants liable ; but that objection was not made at the trial, nor is it stated as one of the reasons for a new trial. If that question had been raised, the jury would probably have been instructed, that the defendants were only bound to use reasonable care. This however has no connexion with the question as to the burden of proof, and is immaterial.
3. In support of the last ground for a new trial, the defendants’ counsel insist on a variance between the allegations in the writ, and the evidence reported, it being alleged in the writ, that the injury was caused by a defect in the railing of the bridge, whereas by the evidence it appears, that it was caused by a defect in the fence on the newly made land at some distance from the railing of the bridge. And it is true, that the immediate cause of the injury was the defect in the fence ; but the primary cause was the defect of the railing as alleged in the writ; the plaintiff was not bound to allege the deficiency in the fence. It was for the defendants to show, by way of defence, that there was a necessity for removing the railing, for the purpose of opening a temporary passage for public accommodation while the bridge was repairing, and that this temporary passage was made safe for passengers as we)1 by night as by day. Such substantially *549must have been the defendant’s plea, if they had set out their defence specially. We are therefore of opinion, that the declaration is well enough in alleging the primary cause of the injury, and that the declaration is well supported by the evidence. It was shown, that a part of the railing was removed, and the footpath obstructed, and the defendants have failed to show that a safe passage was provided as a substitute.
We are next to consider the defendants’ motion in arrest of judgment.
1. It is very clear, we think, that these counts may be well joined, even if the first count is to be considered as a count at common law ; and so it was decided in the case of Fairfield v. Burt, 11 Pick. 244. The form of the action is the same, and so is the plea and judgment. The statute only affects the mode of entering up judgment after the damages have been assessed by the jury. The plaintiff, therefore, was not bound to allege in his declaration, that he was entitled to double damages ; nor was it necessary, that the declaration should have concluded contra formam statuti, as was decided in the case of Clark v. Worthington, 12 Pick. 571, and in other cases not yet reported. And as these averments were not necessary, we should hold the first count to be founded on the. statute, although it may be defective in not averring notice to the defendants of the defect alleged.
2. The second defect, we think, is cured by the verdict. The plaintiff’s title is defectively and imperfectly stated ; but the circumstances and facts omitted to be alleged, to show the defendants’ liability, must be presumed to have been proved on the trial. The Court must presume every thing to have been proved, without proof of which the jury could not have truly found from the evidence as they have found. Thus if a party pleads the grant of a reversion, without alleging the attornment of the tenant, this defect is cured by a general verdict, although at common law it would be fatal on demurrer. Gould on Pl. 500. Now it is expressly alleged in the declaration, that the defendants were by law bound to keep the bridge in repair, and in a state safe and convenient for travelling, at all seasons of the year. The objection is, that it is not shown how they became so bound ; and this objection clearly goes only to the manner of alleging the defend*550ants’ liability. The defect is not in the title as stated, but m t^le manner of stating it, and is clearly cured by the veidict. -n and 4. The same answer applies to the third and fourth objections to the declaration.
5. The fifth objection was waived.
6. This defect also is cured by the verdict. No doubt a private statute should be set out, but it was only necessary in the present case, for the purpose of showing the defendants’ obligation to keep the bridge and causeway in repair. The defect, therefore, is not in the plaintiff’s title or right of action, but in his manner of stating it.
7. This objection, I believe, was waived, and if not, it is clearly insufficient.
8. It is a sufficient answer to this objection, that both counts are for the same cause of action ; and therefore if the first count is insufficient, as we think it is, judgment may be entered on the second count. There is • but one injury complained of. In the first count the injury is alleged to have been caused by the defect in the bridge and want of sufficient railing, and also because the lamps were not lighted ; and in the second count, the latter cause is omitted. But the jury have found, that both defects were proved, and one is sufficient to sustain the verdict. The injury was the same, whether it was caused by one or many defects in the bridge, and the damages are the same, whether one or both counts are maintained. The verdict therefore may be altered if necessary, and judgment rendered on the second count, the first being insufficient for want of an averment that the defendants had reasonable notice of the defect of the bridge. This defect is not cured by the verdict, it being a defect in the plaintiff’s title or right of action. It is similar in principle to the case of Bartlett v. Crozier, 17 Johns. R. 456, in which the defendant wras charged, as overseer of highways, with neglect in not repairing a bridge ; but it was not alleged that he had any money in his hands for making repairs, which by statute is made essential to render him liable. And the declaration was held bad after verdict. The averment of notice of the defect is equally essential in the present case.
Judgment for the plaintiff on the second count