#### Cephas Thompson *versus*The Inhabitants of Bridgewater.

traveller, in order to be entitled to recover damages of a town &c., for loss caused by a deficiency in a road, is not bound to look far ahead in order to guard against obstructions which ought not to be suffered to exist.

Thus, where a person travelling with a horse and wagon might, from an eminence in the road, have seen that a causeway at a considerable distance, which he intended to pass over, was covered with water, but when he descended the hill the causeway v/as out of sight until he had proceeded too far either to turn back or go on with safety, it was held, that hitherto he was not guilty of negligence ; and as he then used ordinary care in endeavouring to extricate his horse from the danger, but without success, he was held entitled to recover for the loss.

Case upon *St.*1786, c. 81, § 7, for a defect in a highway, by reason of which the plaintiff’s horse was lost.

At the trial, before *Morton*J., it appeared from the plaintiff’s evidence, that he sent his son with his horse and wagon from Middleborough to Bridgewater. The hoy had to pass a bridge connected with the upland, on the Bridgewater side, by a causeway thirteen rods long, about fifteen feet wide, and in one part from four to six feet high. After he had proceeded *194to the bridge, he discovered the water to be over the causeway, and that it appeared to be pretty deep. He then wished to return, but could not turn the horse and wagon on account of the narrowness of the bridge and causeway. Seeing several stakes which he supposed indicated the safe course to be taken, he attempted to pass, but the horse got off the causeway and was drowned. The causeway was visible from an eminence at a considerable distance on the Middleborough side, whence it might be perceived whether it was covered with water or not, but after this point was passed, the bridge being much higher than the road on either side of the stream, the causeway could not be seen except from the bridge itself.

*Oct.*21st.

*May term*1829, *at Plymouth.*

The defendant’s counsel contended that the loss of the horse was caused by the negligence of the plaintiff’s servant, and not by the defect of the causeway; and that if the plaintiff, or his servant, was guilty of negligence in attempting to pass the causeway, the plaintiff ought not to recover in this act on.

But the judge instructed the jury, that if from all the evi dence they were satisfied that the loss of the horse was owing to the defect in the causeway, and not to mismanagement or negligence on the part of the plaintiff or his son, they ought to return a verdict for the plaintiff for the value of the horse ; unless they were also satisfied, that the attempt of the plaintiff ’s son to pass the causeway, under the circumstances of the case, was not only indiscreet and inconsistent with ordinary care, but amounted to gross negligence or rashness; in which case they ought to find for the defendants.

The jury returned a verdict for the plaintiff. The defendants excepted to the above instruction, and if it was wrong, a new trial was to be granted; otherwise, judgment was to be rendered on the verdict.

*W. Baylies*and *Eddy,*for the defendants,

cited *Wood*v. *Waterville,*5 Mass. R. 294 ; *Smith*v. *Smith,*2 Pick. 621 ; [2nd ed. 624, note 1 ;] 3 Stark. Ev. 986 ; *Harlow*v. *Hummiston,*6 Co wen, 191 ; *Bush*v. *Brainard,*1 Cowen, 78.

*Wood*and *L. Williams,*for the plaintiff.

The opinion of the Court was drawn up by

Parker C. J.

The charge of the judge which is com *195plained of, is, that if the loss was owing to the defect of the bridge, and not to the mismanagement of the driver, the plaintiff should recover, unless the driver was guilty of gross carelessness or negligence in attempting to pass the causeway.

The first part of the charge is admitted to be right, but it is contended that the qualification was wrong, because if there was want of ordinary care as to going upon the causeway and attempting to pass, the plaintiff ought not to recover. We are satisfied that this part of the charge was right also, and that travellers are not obliged, in order to be entitled to damages for loss occasioned by actual deficiencies of roads or bridges, to look far ahead for obstructions or defects, when none ought to be suffered to exist. The carelessness supposed to be sufficient to defeat the right of action, is in not having seen from the eminence on the approach to the causeway, that it was not passable without hazard; but surely travellers are not required to be constantly on the look out for difficulties which they have a right to presume will not occur. When on the eminence, the boy who drove the horse might have had his attention engaged so as not to see the water on the causeway. From the eminence to the bridge there was no obstruction. Having arrived at the bridge he saw that he could not without danger pass the causeway on the other side, and prudently wished to return. The bridge and causeway ought to have been sufficient to do so. His coming to the bridge does not show any want of ordinary care, and was certainly not gross negligence.

There has been some misunderstanding of the charge, arising from the arrangement of the words in the report. It may admit of the construction, that notwithstanding there was an indiscretion and want of ordinary care at the time of the accident, yet the plaintiff should recover. If this were the necessary construction, the charge would be wrong; for if there be not ordinary care, there must be negligence, and if there were negligence to which the loss might be attributed, the plaintiff ought to bear the loss. Thus, if from foolhardiness one should plunge his horse into water, which by a flood had covered a causeway, he knowing it to be so, or if he should enter upon a bridge which he saw was weakened by *196a storm, he ought not to be indemnified for his carelessness. But we understand this part of the charge to be applicable only to the not having seen the water at a distance, from the eminence, or if it was seen, not exercising sufficient judgment to avoid mischief, by returning. And in this sense the charge was right; for it cannot be exacted as a duty of travellers, to calculate at a distance what may be the effect of continuing their route. It was left rightly to the jury, that if there was gross carelessness and rashness in going to the causeway, then although .there might be no mismanagement .afterwards, the plaintiff could not recoverbut if, on the contrary, there was no such rashness in approaching the place of danger, then, as there was no mismanagement there, he ought to recover.

In this view of the charge, which we think must have been so taken by the jury, and which was agreeable to the intention of the judge, it does not militate against the doctrine laid down in the case of *Smith*v. *Smith,*2 Pick. 623, [2nd ed. 624, note 1,] in which it is held, that ordinary care in the management of the horse is requisite, to entitle a party to damage suffered from obstruction in a public way.1

1

 See *Farnum*v. *Concord,*2 N. Hampsh. R. 392; *Bigelow*v. *Weston,*,3 Pick. (2nd ed.) 269, note 2; *Reed*v. *Northfield,*13 Pick. 94; *Lane*v. *Crombie,*12 Pick. 177; *Harlow*v. *Hummiston,*6 Cowen, 191; *Howard*v. *North Bridge*cater,16 Pick. 189.