
    March Term, 1828.
    
      Gilbert Noyes vs. The Town of Morristown.
    
    fn an action brought on the statute, for an injury alleged to have been occasioned by the insufficiency of a public bridge, it is not sufficient, in order to entitle the plaintiff to recover the amount of his loss, for the jury to find that it was occasioned in any degree, either in whole or in part, by the deficiency of the bridge v
    This was an action of Trespass on the case, brought on tbe statute to recover the amount of damages occasioned to the plaintiff by the insufficiency and want of repair of a certain public bridge in Morrisiovm. It was tried in the County Court, October term, 1827, on the general issue, Royce J. presiding. On trial, it appeared that tbe bridge in question was a high bridge over Lamoille river, eighty feet or more in length, situated in a small village, and in the immediate vicinity of falls, on said river, and passing over a broken rocky bottom — all which circumstances were calculated to render a fall from said bridge - extremely dangerous, if not fatal. It also appeared that at the south end of said bridge,an abutment was erected in tbe high bank rif the stream connecting with said bridge, about twenty feet above the bottom of the river — that the abutment was considerably wider at tbe bank than at the end of the bridge; the latter being twelve feet wide between the upper strings — That tbe road, in descending to tbe bridge from the south, entered upon the same in such a manner that the travelled part inclined towards the lower, or westerly side of the bridge — That the abutment on that side was guarded with a railing connected with the railing on the bridge, but upon the upper or easterly side, the top of the abutment was guarded only by a log or stick of timber, fourteen and a half inches in diameter; and this guard or muniment extended from the shore to the railing on the body of the bridge — That tbe strings of the bridge,and planking or flooring,extended a short distance upon, and over, the abutment — And the railing of the bridge did not extend towards the shore so far as the plank or flooring, by a short distance — the witnesses varying from two to six feet — leaving no other guard but the log or stick of timber aforesaid. It appeared that when the bridge was finished, a stick of round timber, about ten or twelve feet in length, was fastened upons this spot in an inclined position, reaching from timbers near the end of.the railing cowardsthe shore, until the end rested upon the log, aforesaid, where it was pinned down. This stick had been removed and gone for a long time before the accident; and a witness testified that it was no part of the.original bridge, not being directed by the. builder, but had been one of the rollers used in building, and was placed there by the witness and another workman, rather in opposition to the will of the builder, who had only directed them to carry it off. It also appeared that the bridge was old, and the town,at the timo of the accident, were collecting timber and other materials for a new bridge, which has since been erected in the same place. The flooring of the bridge had become partially unsound, and there wore several holes therein, two of which were proved to be near the south end,within 8 or 10 feet of the planking — the largest being near the centre between two and three feet long, and wide enough to' admit the foot of á horse. It appeared that these holes were usually covered with pieces, of loose slabs or plank, but the covering was often removed, and the holes open, at which time the rapid stream below was visible through the bridge. Whether either of these holes were uncovered at the time of the accident, did not certainly appear; but the weight of evidence was, that neither of them was wholly if at all uncovered. It appeared that the plaintiff came to the bridge from the south in a singlé waggon drawn by the horse in question, four years old — that he descended tho hill,' and entered upon the abutment of the bridge, at a moderate and reasonable gait, and' the horse, having stepped upon the first or second plank, suddenly sheered and inclined to the right against the aforesaid log or stick of timber, and went over, disengaging himself from the waggon, and fell either perpendicularly, or along the steep rocky hank, about twenty feet into the river, and was thereby destroyed.
    The defendants introduced several witnesses who testified that this horse was unusually restive and skittish, and was apt to take fright, especially when passing over bridges — that the plaintiffhad owned and used him several months, and was acquainted with his habits — that the plaintiff till within two or three months be-We the accident, had for several years, resided in the immediate vicinity of the bridge — that at the time of the accident the river was considerably raised by a freshet, and that the plaintiff, in descending die hill to the bridge, did not drive in the centre of the travelled part of the road, but deviated to the right, about half the width of his waggon, so that when the horse began to sheer, die off hind wheel was running within about eighteen inches of the log aforesaid — the abutment being at the place thirteen feet wide. The plaintiff introduced evidence tending to shew,that at the time in question the horse had in a considerable degree recovered of his aforesaid habits, and was not unsuitable in that respect for of-dinary business. The defendants made,and insisted in,the following points. That the bridge and abutments were not insufficient, or out of repair> within the meaning of the statute, all the circumstances of the case being considered — that the injury complained of was different from that proved, for that the place where the horse went off was a part of the abutment, and not of the bridgé; ■and that the plaintiff, knowing the habits of his horse, the state ,of the bridge, and of the stream, was guilty of such carelessness and ■imprudence in attempting to pass the bridge at the time, and in the manner he did, as precluded his right of recovery. The Court charged the jury, that the place where the horse went off was to be regarded as part of the bridge for the purposes of this action — that whether the bridge, including this place, was insufficient and out of repair, was to be determined by them upon a view of all the evidence and circumstances in the case•, that if they found it sufficient,and not out of repair, their verdict miglit be for the defendants, without any inquiry into die cause of the accident; but if they found it insufficient or out of repair, they would then proceed to inquire into the cause of the loss sustained by the plaintiff. And if they found it wholly occasioned by his own imprudence, or want of care, he could not recover — -but if they found it to have been occasioned in any degree, either wholly or in part, by the deficiency of the bridge, this place being regarded as a part, the plaintiff was entitled to recover the amount'of his loss. Verdict lor the plaintiff.
    
      The counsel for the defendants argued, That the sufficiency, of roads and bridges, contemplated by the Statute, is only such as would enable persons, (witlr, or without loads) to. pass with safety ; it does not describe the height, thickness, or strength of muniments to be erected on the sides of bridges. It is to be construed to answer the purposes intended by the makers of the law. — That towns are only bound to exercise ordinary care in the erection of, ánd keeping in repair, roads and bridges. — •‘Big. Dig. 810, Dobdéíf vs. The Inhabitants of Hew Bedford.
    
    The injury sustained by the plaintiff is charged in plaintiff’s dec-1 laration to have been from the bridge, and not elsewhere : This action, being in case, given by statute, makes it necessary for the plaintiff in his declaration to set forth the material facts of his case with legal precision and certainty, so that the evidence may support, and correspond with, the declaration. There is error in the charge of the judge, “for that the place where the horse weiff off was to be regarded as part of the bridge, for the purposes of this action — that whether the bridge, including this place, was insufficient,”&c. This place does not appear, nor is it described, or set forth, in plaintiff’s declaration 5 it being the abutment where the horse went off. Bridge is a passage of wood or stone over a river &c. Abutment, from abut, signifies to border upon.— Bailey’’s Dictionary. The locils in quo,being material, should be set forth With precision, and proof of an injury sustained in a different place constitutes a variance between the declaration and the evidence. — 1 Ckiity, 307.
    There is error in the charge, of the judge in this, “that if they found the injury to have been occasioned, in any degree, either wholly, or in part, by the deficiency of the bridge, this place being regarded as a part, the plaintiff was entitled to recover,” without connecting the carelessness or imprudence of the plaintiff, or manner of driving,or the vices of his horse, and placing them in the balance against the deficiency of the bridge.
    
      Mr. Sawyer, for the plaintiff. In this cause tile court were requested to charge the jury, that the accident having been declared to have happened on the bridge — and that said bridge was insufficient ; and the proof adduced was, that the injury happened by means of the insufficiency of the abutment, the plaintiff" had failed in support of his cause. The plaintiff contends that 'the bridge and abutment are one and the same for the purpose of this “action.—
    The abutment is a component and'necessary part of the bridge.
    The court charged the jury, that if the injury was occasioned wholly by the plaintiff’s imprudence and want of care, he ought not to recover. But if occasioned in any degree, either wholly or in part, by the deficiency in the bridge, the' abutment being regarded as a part, the plaintiff’ was entitled to recover. It is contended that die charge was correct, and nearly in the words of the statute — creating the right of action — The words are “ by ‘means of any insufficiency or want ofrepaii’sj&c.” — SWtrtc of VtipA32, s. 13.
    It is incumbent upon the towns to build their bridges, and keep them in repair, so as to prevent the chance of injury under ordinary circumstances. The court will require that towns shall build their bridges in such a manner as to afford a reasonable safety'1 and protection to travellers — arid the court will not, in making out the lines by which towns ought to be' governed, create a-rule which might induce negligence. Neither will'the court decide that every person is bound to drive such horses as are thoroughly broke and disciplined,in order to reedver against a town, in case of accident, in a case of the above description. If the town is in fault, the court will enter into the degrees of probability of loss on account of skittishness, or the restive disposition of the horse, and nothing more is asked by the plaintiff in support of the charge of the court on this point,than the principles contained'in the cause of the Winooskie Turnpike Company.
    
   Tubi-teb, J.

delivered the opinion of the court. . In this case the defendants claim a new trial on the ground of thé mis-direction of the Judge, in two particulars.

1. The evidence was, that the place where die horse fell off Was a part of the abutment, whereas, the declaration stated that the horse fell off from the bridge; and the judge charged that for the purposes of this action, the abutment ■ must be considered a part of the bridge..

2 v To the charge of the Judge, that “ if the jury foimdthe loss to have been occasioned in any degree, either in whole or in part by tho deficiency of the bridgo, the Six hutment being regarded as a part, tho plaintiff was entitled to recover the amount of his loss.” — 1 As the court regard the charge to be erroneous in this point, it is unnecessary to consider the first objection. The statute (p. 432, see. 13.) provides “That if any special damage shall happen,to any person or persons,' or to his, her, or their teams or carriages, by means of any insufficiency br want of repairs in any highway, or publick bridges in any town in this state, the party sustaining such damage shall have the right to recover the same in an action on the caSe against such town.” The “special damage” for which the statute'gives this action, is that which is caused by “ deficiency or want of repair” of the bridge : and the person injured . must show the injury to have arisen from that cause. He must show the.occurrence of the specific contingency on which die statute has made his right of action to depend; for there is but one contingency for which it has made provision. If the loss was occasioned wholly,or in part, by the negligence or misconduct of the party himself; he could not surely recover “ the amount of the loss;” the bridge may be very defective, and yet the loss may be clearly occasioned by such negligence, or misconduct, or some other cause ; and' yet, on the principle of the charge, the party sustaining it, may be remunerated for his misfortune or misconduct at the expense of the town. Whether the damages may not be divisible, if the jury find the loss to be occasioned partly by his own fault, and partly by the deficiency of the bridge, is not necessary here to be determined. For on the supposition that tho jury so fin'd, the charge holds the town responsible for “ theamount of the loss.”

The doctrine laid down by Parsons, C. J. in the case of Wood vs. Town of Waterville, 4 Mass. R. 423, has direct application to this case. The horse of the plaintiff, Wood, was destroyed in consequence of a defect or want of repair of a bridge. The de-fence of the town was,that the plaintiff, Wood,was himself highway surveyor; and that the defect in the bridge,Hvas caused by his neglect to repair the bridge, which his duty required him to do ; and therefore he was himself in fault. Judge Parsons remarks, “ From an examination of the act,” which is similar to our own, “ it is manifest thatjthe principle on which darn-ages are given is that the fown have neglected to cause repairs to be made, agreeable to the duties enjoined on them by law, and that the. ‘party injured is in no, fault. For it cannot be presumed that the a.ct intended to provide a remedy for damages sustained by any man through his own wrong.” -In the present case the doctrine of the charge is, that the plaintiff is entitled to recover ■“ the amount of the loss,” if it is found to have been occasioned in any degree, in whole, or in part, by the deficiency of the bridge, whether the loss arose in any degree from his own misconduct or not.

The verdict must be set aside and a new trial granted,  