
    Samuel Smith versus Ammi Smith.
    One who is injured by an obstruction placed unlawfully in a highway, cannot mar tain an action for damages, if it appears that he did not use ordinary care, by which the obstruction might have been avoided.
    This was an action on the case for an injury done to the plaintiff’s horse by a wood-pile, which the defendant had placed in the highway.
    At the trial, before Putnam, J., it appeared, that the horse was harnessed to a wagon loaded with two barrels filled with cider, and two others which were only about two thirds 'full. There was no shaft girth to the wagon ; there were breech hooks and lug hooks to the shafts, and there was a crupper to the saddle. The horse was driven by one Kimball; who was a witness in the case. The wood was piled or corded jp on the side of the highway. One stick projected eight inches beyond the rest of the pile. The accident happened in the night, when it was very dark, as Kimball was descending a circuitous hill. He led the horse down a part of the nil], and then got inte the wagon to ride, when the shafts immediately flew up and the wagon went against the horse, which went very fast until the wagon struck the wood pile ; then the wagon broke and the horse ran off with a part of the harness upon him, but clear of the wagon. The wagon rubbed for three or four feet against the pile, and then caught against the projecting stick. The horse was injured in the cords of his hind legs above the fetlocks. Kimball thought he was about twenty feet from the wood when he discovered it. He was on the right side of the road, and he thought he should have passed without injury if the wood had not been in the way.
    The defendant contended, that the driver did not use ordinary care on this occasion; objecting, 1. that he overloaded the wagon ; 2. that he did not put a shaft girth on ; 3. that he did not drive skilfully; and 4. that the horse received the injury by kicking his hind legs against the wagon before it came in contact with the wood pile ; and to those points much evidence was given and submitted to the jury, who found a verdict for the defendant.
    The plaintiff moved for a new trial, because the jury were instructed, that if Kimball, who had hired and was driving the plaintiff’s horse, was wanting in any respect in ordinary care, the defendant was not liable in law; whereas the plaintiff contended that the rule of law was, that even if Kimball were in some degree wanting in ordinary care, yet the defendant was the party originally in fault, by having first committed the unlawful act which occasioned the injury complained of, and was therefore liable.
    
      Pickering) in support of the motion, insisted that a slight degree of negligence on the part of the plaintiff would not furnish a ground of defence, where the other party had been previously guilty of greater negligence. The defendant was to blame in piling the wood in the highway, and it was great negligence to leave one stick projecting beyond the rest. Ordinary care would not have enabled the plaintiff to avoid this extraordinary obstacle. Buller, in his Law of Nisi Prius, p. 26, says, “ So if a man lay logs of wood cross a highway ; though a person may with care ride safely by, yet if by means thereof my horse stumble, and fling me, I may bring an ac tion.” This rule is to be considered as having his authority, as the cases which he cites seem intended to apply to another part of the paragraph. See also 27 H. 8, 27 ; Fowler v. Sanders, Cro. Jac. 446 ; Co. Lit. 56 a ; 2 Dane’s Abr. 484. In Butterfield v. Forrester, 11 East, 60, there was, to say the least, gross negligence on the part of the plaintiff, and the case seems to have been decided on the particular circumstances.
    
      Saltonstall, for the defendant,
    relied very much on the case last mentioned, and on Flower v. Adam, 2 Taunt. 314. He cited likewise, Clay v. Wood, 5 Esp. 44 ; Mayhew v. Boyce, 1 Starkie’s R. 423 ; Riddle v. Merrimack Locks &c., 7 Mass. R. 183.
    The opinion of the Court was read at Ipswich, as drawn up by
   Parker C. J.

[After stating the case.] It would seem, at first, that he who does an unlawful act, such as incumbering tne highway, should be answerable for any direct damages which happen to any one who is thereby injured, whether the party suffering was careful or not in his manner of driving or in guiding his vehicle, for it could not be rendered certain, whether, if the road were left free and unincumbered, even a careless traveller or team driver would meet with any injury. But on deliberation we have come to the conclusion, that this action cannot be maintained, unless the plaintiff can show that he used ordinary care ; for without that, it is by no means certain that he himself was not the cause of his own injury: The party who obstructs a highway is amenable to the public in indictment, whether any person be injured or not, but not to an individual, unless it be shown that he suffered in his person or property by means of the obstruction ; and where to has been careless it cannot be known whether the injury is wholly imputable to the obstruction, or to the negligence of the party complaining. And considering the indulgence shown ny the public to the citizens, in many places, to occupy a part of the highway for temporary purposes, leaving ample room for travellers with ordinary care to pass uninjured, the principle which requires that degree of care in order to entitle a party to damages, may be deemed salutary and useful. That such is the law, we are fully satisfied from an examination of the authorities cited.

The case of Butterfield v. Forrester, 11 East, 60, is very strong to this point. The plaintiff, who was riding violently in a public highway, was thrown down with his horse, and injured by means of an obstruction placed there by the defendant. It was proved, that if the plaintiff had not been riding very hard he might have seen the obstruction and avoided it, and on this ground he failed in the action. Lord Ellenborough said, “ A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right.” And in the Common Pleas, in the case of Flower v. Adam., 2 Taunt. 314, the same principle is recognised as law, the plaintiff being prevented from recovering, because it was proved he might have avoided the obstruction, if he had managed his horse with ordinary skill and care. These cases are cited in Wheaton’s edition of Selwyn’s Nisi Prius, and the principle is admitted into the text, that to entitle the plaintiff to an action for damages resulting from a nuisance he must show that he acted with common and ordinary caution.

The only authority which seems to be in opposition to these, is contained in a short passage in Buller's Nisi Prius, p. 26, in these words; “ If a man lay logs of wood cross a highway, though a person may with care ride safely by, yet if by means thereof my horse stumble and fling me, I may bring an action.” This citation at first struck us as maintaining a principle different from that laid down in the above cited cases, but on further consideration we are satisfied that there is nothing in it repugnant to it. The meaning of the passage undoubtedly is, that notwithstanding a person using due care may possibly pass the obstruction without injury, nevertheless, if one is injured, that is, as we understand it, if one who uses this care does by misfortune suffer from the obstruction, he shall recover. And we think the court, in the case first cited, must have so understood the passage, or it would have been commented upon, it having been pressed upon their consideration by the counsel. And we are led to consider this as the true sense of the passage, also, from examining the case cited by Buller from Carthew, 194, and 451, in which we find no position which would support Buller, if'he meant to say that a man might recover for an injury by an obstruction, without showing ordinary care on his part.

Whether the jury erred in their estimate of the evidence given them, which had a tendency to show a want of care on the part of the plaintiff, we are unable to say, as the case has not been reported with a view to set aside the verdict as contrary to evidence, or against the weight of it. The law was rightly stated to them, and it was their business to judge of the evidence. So that judgment must be rendered accord"ng to the verdict. 
      
       See also Lane v. Crombie, 12 Pick. 177 ; Parker C. J. in Thompson v. Bridgewater, 7 Pick. 188 ; Savage C. J. in Harlow v. Humiston, 6 Cowen, 191 ; Bush v. Brainard, 1 Cowen, 78 ; Noyes v. Morris, 1 Vermont R. 353 ; Chaplin v. Hawes, 3 Carr. & Payne, 554 ; Pluckwell v. Wilson, 5 Carr. & Payne, 375 ; Sutton v. Clarke, 6 Taunt. 29 ; Jones v. Boyce, 1 Stark. R. 493 ; Wordsworth v. Willan, 5 Esp. R 273 ; Steele v. Inland Western Lock Navigation Co., 2 Johns. R. 283 ; Town of Lebanon v. Olcott, 1 N. Hamp. R. 339. The same rule holds in cases of negligence in the management of ships, whereby a loss accrues. Luxford v. Large, 5 Carr. & Payne, 421 ; Lack v. Seward, 4 Carr. &, Payne, 106 ; Handaysyde v. Wilson, 3 Carr. & Payne, 528 ; Vennall v Garner, 1 Crompt. & Mees. 21.
     