¶1FROM COOS CIRCUIT COURT. The only question to be decided in this case is, whether the nonsuit was rightly ordered, — in other words, whether there was anything for the jury to consider.
¶2The first count alleges generally that the highway was defective and insufficient, c. The second count alleges that the culvert was insufficient, and in each count it is alleged that the accident happened by reason of such insufficiency.
¶3It is true that the culvert was not within the travelled part of the highway proper, but it was a part of a turn-out from the highway connecting with a pass from the highway to the depot. This turn-out had all the appearance of a regular highway, and a great amount of travel is said to have passed over it.
¶4I think, as matter of law, although I have not noticed any case *91 exactly in point, that if the town permitted such a turn-out to exist from the highway to the way over the depot grounds, it was bound to keep in repair so much of such turn-out as was within the limits of the highway as laid out. Coggswell v. Lexington, 4 Cush. 307, seems to be, in principle, an authority for this view.
¶5Whether the town would have a right to prevent travel from its highway to the depot ground, or from the depot ground to the highway, it is not now necessary to inquire. The town did permit it. Travellers, finding, the road thus apparently travelled, would have a right to travel there, and to rely upon finding the road in suitable condition.
¶6This being so, the questions whether the culvert was wide enough or otherwise sufficient, whether the accident would have been avoided had the culvert been sufficient to permit the horse to turn to the right and leave behind her the object of her terror, whether the accident was so proximately occasioned by the insufficient culvert as that the town would be liable, and whether the driver was in the use of sufficient caution, were all emphatically questions for the jury. The distinction between remote and proximate causes has been much discussed in comparatively recent American cases. The rapidity with which fires from locomotives have spread, and the enormous extent of the injury, have brought this matter much into notice. In 3 Parsons on Contracts 178 (6th ed.), the rule is stated as follows: "We have been disposed to think that there is a principle, derivable on the one hand from the general reason and justice of the question, and on the other hand applicable as a test in many cases, and perhaps useful, if not decisive, in all. It is, that every defendant shall be held liable for all of those consequences which might have been foreseen and expected as the result of his conduct, but not for those which he could not have foreseen, and was therefore under no moral obligation to take into his consideration." This rule is substantially adopted in A. T. S. F. R. R. Co. v. Stanford, 12 Kansas 354, and Fent v. T. P. W. Railway Co.,59 Ill. 349; and it appears to me that the same is the rule adopted in the English cases. In 6 Am. R. 599, the learned editor, in a note to the case of Flynn v. S. F. S. J. R. R. Co., says, — "A resume of the discussion, and an observation of the course of decisions, both in England and the United states, will reveal the fact that not until recently has this distinction been advanced in the courts. Ill fact, the decisions of England do not furnish a single instance of the distinction." So far as I have noticed, the remark is just.
¶7If the rule, as suggested by Professor Parsons, is correct, as I believe it to be, it will follow that the question, whether the damage sustained be the natural and probable consequence of the wrong complained of, will be for the jury. That there was on evidence tending to show that these questions ought to be answered in favor of the plaintiff, the court cannot say as matter of law. As there was evidence for the jury to consider, the nonsuit was improperly ordered.
¶8Judgment must be rendered for the plaintiff according to the provisions in the case. *92
¶9Towns are required by statute to keep the highways within their, limits in repair suitable for the travel thereon. Gen. Stats., ch. 69, sec. 1. When an action is brought, under the provisions of this statute, the proper question to be submitted to the jury is, whether the immediate and real cause of the damage to the person injured was the defect or obstruction complained of; or, in the language of the statute, whether the damages happened "by reason of any obstruction, defect, insufficiency, or want of repair, which renders it [the highway] unsuitable for the travel thereon."
¶10The proper inquiry in this case was, whether the want of a suitable culvert in the turn-out leading from the highway to the depot grounds was the prime moving cause of the accident to the plaintiff's team, without the existence of which defect the accident would not have happened; if so, the plaintiff is entitled to recover, and this was a question for the jury. Littleton v. Richardson, 32 N.H. 59.
¶11One cause of the accident was the frightening of the plaintiff's horse. The fright of the horse was caused, not by a defect or obstruction in the highway, but by the engine and car of the railway company. Nor was the horse injured by falling into the culvert in the attempt to avoid the engine. It became material, then, to inquire whether he was thrown upon the railway track in attempting to avoid an insufficient culvert; or, in other words, was the culvert so constructed that the highway was not suitable for the travel thereon? If the jury should find that, notwithstanding the fright of the horse, the injury would not have happened but for the defect in the culvert under the turn-out, — that the insufficient culvert was the direct and proximate cause of the accident, — the plaintiff would be entitled to recover, provided, of course, the conduct of his bailee did not contribute to the accident.
¶12It was contended by the defendants' counsel, in the argument, that a town is not bound to furnish a turn-out for a traveller to get upon the highway; that a town is bound to clear its highways of everything that may impede the onward travel, but that every man must provide the means of ingress and egress as he pleases; that a town has only to make its highways suitable for the public travel thereon.
¶13This position cannot be maintained. In Stack v. Portsmouth, 52 N.H. 224, BELLOWS, C. J., in delivering the opinion of the court, declared the law to be as follows: "Whether the highway is rendered unsafe by an object without its limits, is a question of fact for the jury. If the defect is established, the inquiry is whether the plaintiff was in the proper and reasonable use of it.
¶14"In determining that, the question is immaterial whether the plaintiff was travelling across the highway or length wise of it. Both modes of use are equally necessary, and there can be no doubt that both are lawful, and, for aught we can see, the duty of the town is the same in respect to both. No authority is cited for any distinction in this respect, nor do we find any. The obligation to keep the highway in a reasonably safe condition is for the benefit of all who have occasion to pass over it, in any direction, for the purposes of business, convenience, or *93 pleasure. Such persons are travellers upon the highway, within the meaning of the statute. They are using it for the ordinary and legitimate purposes for which it was made."
¶15We cannot say, as a matter of law, that here was no evidence to be submitted to the jury upon the question whether the defect in the culvert was the proximate and real cause of the injury to the plaintiff's horse. Whenever the question of remote or proximate cause is raised, it becomes a mixed question of law and fact, to be submitted to the jury under proper instructions. Fent v. Co., 59 Ill. 349; Fairbanks v. Kerr, 70 Pa. St. 86; Holden v. Railroad, 30 Vt. 297; Saxton v. Bacon, 31 Vt. 540; Littleton v. Richardson, supra; State v. M. L. R. R., 52 N.H. 528. The cases which give a rational explanation of the doctrine of remote and proximate causes, generally show that it is always for the jury to say whether the damage sustained is what the defendant ought to have expected, in the exercise of reasonable care and discretion. The defendant is bound to use the care which the consequences, naturally and reasonably to be expected to follow from negligence, require, and, failing in that, is bound to pay such damages as his negligence has occasioned. According to this view, it would be for the jury to say whether, if the highway were defective, the injury was such as in the exercise of a reasonable discretion ought to have been anticipated. Cate v. Cate, 50 N.H. 144.
¶16As this question should have been submitted to the jury, the nonsuit must be set aside, and the plaintiff must have judgment according to the provisions of the reserved case.