
    WILLIAM C. KEELER, DEFENDANT IN ERROR, v. BOARD OF FREEHOLDERS OF THE COUNTY OF BURLINGTON, PLAINTIFF IN ERROR.
    ■Submitted December 3, 1909 —
    Decided February 21, 1910.
    1. Where there was testimony tending to show that a hole in a highway into which a horse had stepped and thereby sustained injury, was the result of the neglect to repair the side wall of a county bridge, and there was also testimony tending to show that the hole had not resulted from the disrepair of the wall of the bridge but had been made bj' muskrats — Held, that a jury question was px-esented and a nonsuit was coxTeetly refused.
    2. If the hole in the highway was the result of the lack of repair to the bridge wall, then the injury ensuing by reason of the horse stepping into the hole brings the case within the scope of “An act respecting bridges,” approved March 15th, 1860.
    On error to the Burlington County Circuit Court.
    Before Gummere, Chief Justice, and Justices Garrison and Voorhees.
    
      For the defendant in error, Davis & Davis.
    
    Eor the plaintiff in error, Charles Ewan Merritt and V. Claude Palmer.
    
   The opinion, of the court was delivered by

Voorhees, J.

This is a writ of error to review a judgment rendered against the board of chosen freeholders in favor of the plaintiff for injuries to his liorse while traveling over the highway or approach to a bridge maintained by the defendant in Burlington county. The declaration alleges that the bridge and approaches had been out of repair for a long time prior to the injury, of which condition the defendant had been notified.

The only assignment of error requiring examination is that the court refused to grant a nonsuit.

The action is grounded upon a supplement to the “Act respecting bridges,” approved March 15th, 1860 (Gen. Stat., p. 307), which has been in Ripley v. Freeholders, 11 Vroom 45, liberally construed to give a remedy for all injuries to persons or property for the safety of which the duty of repairing the particular bridge is by law cast upon the municipal body and holds that such injuries need not occur in the act of passing over such bridge. In the case cited the recovery was for damage to a vessel while passing through the draw of a bridge. This ease was afterwards in Jernee v. Monmouth, 23 Id. 553, approved by the Court of Errors and Appeals, but it was stated that the legislative intent was to give a remedy for injury only where of right there is dependence on the bridge for the full and safe performance of its appropriate functions. So in Maguth v. Freeholders of Passaic (Court of Errors and Appeals), 43 Id. 226, the application of the act was confined to giving redress to those who sustain special damage through the neglect of the public duty to erect, rebuild or repair.

A function of the bridge wall was to keep the earth forming an approach to the bridge or part of the highway adjacent thereto in place and solid. If this function was interfered with by negligence of the defendant in failing to repair the wall, then lor the resultant injury a right of action arose under the act.

There was evidence to show that the wall of the bridge had practically fallen into the stream and was in bad repair; that the hole into which the horse fell ran from the surface of the traveled highway diagonally to and through the wall of the bridge; that this condition had continued from November to January and the defendants were aware, through notification, of the unsafe condition. There was also testimony contradicting this state of facts and tending to show that the hole had been made by muskrats. It became a question for the jury to determine the true facts from the evidence and which of the two contentions had been established by the weight of evidence. If the hole in the highway was the result of the disrepair of the bridge wall, then the injury ensuing by reason thereof brings the case within the scope of the .act. The non-suit was properly refused. The other assignments of error have been ■examined and found, to be without merit. - ;

The judgment will be affirmed. .  