
    [ *264 ] *Charles D. Williams and Wife vs. The Town of Clinton.
    It is never the duty of the court to instruct the jury that, if they find certain facts to be proved, they are to find a party guilty of negligence. The question of negligence is wholly one for the jury.
    In an action on the case against a town for an injnry caused by the neglect of the town to maintain a railing along an embanked part of the highway, on which the defendants claimed that the plaintiff had been guilty of negligence in traveling on the road to which she was a stranger in a very dark night, without a guide or light, the court instructed the jury that they must find that the injury was caused by the neglect ofitbe defendants without the plaintiff’s contributing essentially to the injury by negligence on her part— that slight negligence, which did not amount to want of reasonable care, would not prevent a recovery, but that if the plaintiff’s conduct amounted to gross negligence or rashness, or was indiscreet and unreasonable, she could not recover. Held, on motion of the defendants for a new trial, that they could not justly complain of the charge, which was more favorable to them than they had a right to demand, and was perhaps open to exception on the part of the plaintiff
    Action on the case, for injuries sustained by Betsey Williams, one of the plaintiffs, by reason of the neglect of the defendant to erect a railing along an embankment on a public highway. Upon the trial to the jury the plaintiffs claimed, and offered evidence to prove, that Mrs. Williams was passing on foot along a highway in the town of Clinton, in the evening, from the railroad station at which she had just arrived, to the house of her sister who lived about three quarters of a mile from the station, and that, in passing along a part of the foot path which had been raised, nearly perpendicularly, from two to four feet above the adjoining ground, and was from five to six feet above a ditch at the bottom of the embankment, she accidentally, and while in the exercise of ordinary care, stepped off the embankment in consequence of the want of a railing, and fell into the ditch below and was seriously hurt. The defendants claimed, and offered evidence to prove, that the night was very dark and rainy, that a stranger could not have found his way without a guide or lantern, that Mrs. Williams was advised at the station not to attempt to go without a guide, and that a citizen *of the town offered to go with her, but that she [ *265 ] declined his assistance, and that she passed on her way several houses where she could have procured a guide or a light; and the defendants thereupon requested the court to charge the jury, that if the night was so dark that Mrs. Williams, in passing over the highway in question, could not discover the pathway, or distinguish other objects along the route she took, or the edge of the highway, or distinguish whether it was an embankment or level ground, and had been warned as to the darkness of the night and the risk of her attempting to go without a light or a guide, and persisted in attempting to travel over the highway alone and without a light, the plaintiffs could not recover, and that it was the duty of the plaintiffs to show that Mrs. Williams was in the exercise of ordinary skill and care, and that her own misconduct did not essentially co-operate with the negligence of the defendants in producing the injury complained of. . ?
    The court instructed the jury that, to entitle the plaintiffs to a verdict, they must satisfy the jury that it was the duty of the town of Clinton to maintain the highway in question ; that some part of it was so raised above the adjoining ground as to be dangerous to travelers; that the defendants had not erected and maintained a sufficient railing upon the sides of the highway so raised ; and that in consequence of this culpable neglect of duty on the part of the town, Mrs. Williams had received an injury to her person, without contributing essentially to the injury by any negligence on her part; but that slight negligence, which did not amount to a want of reasonable and ordinary care, and did not contribute essentially to the injury, would not prevent a recovery, if the town was guilty of culpable negligence as claimed by the plaintiffs. The court then instructed the jury that they were to inquire whether Mrs. Williams, at the time of the accident, was in the exercise of ordinary care under all the circumstances, and whether she fell from the embankment in consequence of the want of a railing upon it; and remarked that, with regard to the exercise of ordinary and reasonable care, if her conduct *in going to her sister’s that [ *266 j evening was indiscreet and unreasonable, or if it amounted to gross negligence or rashness, the plaintiffs ought not to recover; and that the question whether there was negligence or want of reasonable care on her part under all the circumstances, was a question of fact for the jury.
    
      The jury having returned a verdict for the plaintiffs, the defendants moved for a new trial.
    
      Wait and R. D. Smith, in support of the motion.
    
      Lippitt and Brandegee, contra.
   Ellswokth, J.

We think the court committed no error in refusing to charge the jury that, upon certain hypothetical facts, Mrs. Williams was so chargeable with negligence as that there could be no recovery by her and her husband. Under the pleadings, the issue presented nothing but a. question of fact—• was there or not culpable negligence on her part ?

We cannot permit such a question to be taken from the jury, the legal and constitutional tribunal, by the defendants specially reciting the evidence adduced on the trial and claiming that the court shall instruct them as to its legal effect. Such a course would speedily put an end to all jury trials. The opinion of the court may properly enough be taken when the case turns upon the legal effect of a single fact admitted or proved, such as the effect of an instrument and the like ; but even then, under the general issue, it is done under the discretion of the court, and is not of course demandable of right. It may be and sometimes is done by a demurrer to evidence, but never where there are numerous and controverted and complicated facts to be decided.

Nor do we see any error in the other omission in the charge, nor in what the judge did charge as being the law of the case. Indeed the law on this subject is quite too familiar, and has been too often decided by this court, to be misunderstood by any one ; and the superior court was' not mistaken in this instance—certainly not to the prejudice of the defendants. It is [ *267,] *well settled.that, in actions for damage caused by negligence, the defendant is liable for the want of ordinary care, unless there is a proximate negligence in the plaintiff which materially contributes to the injury, in which case he can not recover. . This rule we find stated in this charge; and the defendants have no ground to complain that the law has not been correctly and distinctly laid down. The jury were told that, in order for the plaintiffs to recover, they .must show that Mrs. Williams was without serious fault and in the exercise of ordinary care, and that if there was any thing in her conduct which essentially, co-operated with the wrongful acts of the defendants to produce the injury, the plaintiffs could not recover. This we say should be satisfactory to the defendants. Perhaps the plaintiffs, had they not obtained a verdict, might have com. plained, when the judge told the jury that if the conduct of Mrs. Williams in attempting to go to her sister’s that evening was indiscreet and unreasonable they could not recover. But we need not dwell on this point, for this part of the charge certainly did the defendants no injury. We therefore advise that a new trial be not granted.

In this opinion the other judges concurred.

New trial not advised.  