
    John Cassidy, Administrator, vs. William H. Angell, Town Treasurer of North Providence.
    When a plaintiff sues for injuries caused by the negligence of another, and his own case shows contributory negligence, he may be nonsuited, otherwise his case should be submitted to a jury.
    A. was found fatally injured in an excavation in a highway. All that was inown of the matter was that he had been seen walking along the highwayin his usual manner. A.’s administrator sued the town, alleging that the negligence of its authorities resulted in A.’s death.
    
      Held, that the case should be submitted to a jury, and that the jury should consider A.’s habits as to temperance and caution, and his acquaintance with the locality, in deciding whether he had exercised reasonable care.
    Plaintipe’s petition for a new trial.
    The plaintiff sues as administrator of one Martin O’Malley, claiming that O’Malley’s death resulted from the negligence of the town of North Providence, in leaving one of the highways of the town in a dangerous condition and without proper guards. It appears from the record that the town authorities were cutting down a steep ascent on the Wilbur Hill road. The roadway had been excavated and was impassable; but a foot-path remained along the side of the pit which had been made in blasting and digging. This path was used daily by persons passing up and down the hill. The last work done on the afternoon before O’Malley was injured was to throw blasted stone out of the pit on to the foot-path. A part of this stone was removed, but enough remained to obstruct' the path. No lights were hung out and the roadway above and below the excavated spot was not completely barricaded. The accident happened on the night of January 19, 1871.
    John Barnes testified before the jury: “ O’Malley worked for me. I recollect the night O’Malley was hurt. It was dark when he got to my house, very near six o’clock. I saw him when he started for home. He went right from the barn down the Wilbur Hill road in the ordinary way. That was the last I saw of him alive when he went out of the gate and down the road towards home.”
    As O’Malley did not return home his family became alarmed, went out to obtain information of his whereabouts and found him lying at the bottom of the excavation with a severe wound on the back of his head. O’Malley died a few days afterwards from the results of the wound.
    
      No other evidence as to the occurrence was produced or is obtainable.
    O’Malley knew about the excavation and was accustomed to pass by it in going to and from his work.
    On this state of proof the presiding justice nonsuited the plaintiff, who excepted and brought this petition.
    
      July 26, 1879.
   Potter, J.

In this case after the plaintiff had prft in his evidence he was nonsuited on the ground that he had produced no evidence to show that the deceased was in the exercise of ordinary care. And the defendant claims that this should be shown by affirmative evidence.

In the present case the accident was in the night. The person injured did not live to tell his story to a jury.

We think the case should have been submitted to a .jury. There is ordinarily a certain degree of presumption that a person of ordinary intelligence will not purposely expose himself to danger. On the other hand, the habits of the person as to temperance, heedlessness, &c., may be considered, and so also that he lived near and must have known of the danger. If the plaintiff’s own case shows that he brought the injury on himself by his own carelessness, he may be nonsuited; but if it does not he should not be nonsuited, but the question is for the jury. So it has been held that the exercise of due care may be inferred from the absence of all appearance of fault on the part of the plaintiff. And as Dr. Wharton observes, the conflict of decisions is more apparent than real. When the plaintiff shows negligence on the part of the defendant, and there is nothing to imply, that the plaintiff brought on the injury by his own negligence, then the burden of proof is on the defendant to show that the plaintiff was guilty of negligence. Wharton on Negligence, §§ 423, 425, 426 ; Bonnell v. Del., Lack. & West. R. R. Co. 39 N. J. Law, 189 ; Johnson v. Hudson River R. R. Co. 5 Duer, 21; 6 Duer, 633 ; and see the remarks of Denio, J., on the burden of proof in the same case, 20 N. Y. 65, 70. In New York it is settled that the jury may infer that the plaintiff was using ordinary care from the absence of contrary indications. Shearman & Redfield on

James M. Ripley, Albert R. Greene $ Charles Bradley, for plaintiff.

James C. Collins, for defendant.

Negligence, §§ 43, 44, approving the language of Denio, J., that the negligence of the plaintiff is matter of defence unless it can be inferred from tbe plaintiff’s own evidence. And the same doctrine is laid down by the Supreme Court of the United States. Railroad Company v. Gladmon, 15 Wall. 401.

Petition granted. 
      
       See these oases collected and discussed in Albany Law Journal, vol. 18, pp. 144, 164, 184, 204.
     