Bartol, C. J.,
delivered the opinion of the Court:
This suit was brought by the appellee to recover damages for injuries sustained by him, from an accident caused by the alleged negligence of the appellant.
The ground of the action is that the Railroad Company in the construction of its bridge across the Potomac, at Harper’s Perry, had made an embankment or precipice twenty feet deep, extending from the end or abutment of the bridge along the river, so near to the highway as to be dangerous to persons approaching the bridge at night; and the plaintiff in attempting to walk upon the bridge for th-e purpose of crossing, missed his way and fell over the precipice. The accident occurred in November, 1867, at about 9 o’clock at night.
The embankment is supported by a wall erected by the defendant, the top of which is on a level with the highway and the contiguous ground ; and the alleged negligence consisted in not providing railing or guards at and along the wall, a light to indicate the entrance to the bridge, or a watchman for the protection of travellers.
On the west side of the bridge next to the retaining wall, there is a highway for common travel, the entrance to which between the columns, is ten feet wide, and by [584]*584the side thereof, between the carriage way and the railroad tracks of the Winchester branch on the west, is a foot-way for travellers; the bridge being designed for ordinary travel in carriages and on foot, as well as for the railways ; the defendant received toll from per sods crossing, and toll was paid by the plaintiff.
There is a space of ground between the highway leading to the bridge, and the retaining wall or edge of the precipice, belonging to the defendant, over which the plaintiff must have passed before he reached the place from which he fell, which according to the testimony, and as indicated on the plat used at the argument, was about ten or fifteen feet from the entrance to the bridge. It thus appears that the accident did not happen upon the highway or the bridge, but outside thereof, on the private property of the defendant, upon which it is alleged the plaintiff had no right to be, and it is contended that this fact deprives him of the right to recover ; and for this proposition we have been referred to Howard vs. Inhabitants of North Bridgewater, 16 Pick., 189 ; Rice vs. Montpelier, 19 Verm., 470 ; Farnum vs. Concord, 2 N. H., 392, and Howland vs. Vincent, 10 Met., 371.
Without stopping now to consider the particular points ruled in those cases, it may be conceded as a general principle that££a traveller who without necessity diverges from the travelled path, cannot recover for injuries received while travelling outside such path." But the facts of this case do not bring it within that general principle. It appears from the proof that the whole surface of the ground about the highway, up to the entrance to the bridge, and out to the edge of the retaining Avail or verge of the precipice was levelled off smooth; there was nothing to indicate the location or line of the highway, or to distinguish it from the contiguous ground on the west side, and a deviation of a few steps in that direction precipitated the plaintiff over the wall.
[585]*585Under such circumstances we hold the law to be clear, both upon reason and authority, that the accidental deviation from the highway such as occurred in this instance, does not necessarily deprive the plaintiff of the right of action.
The law imposed the duty upon the defendant in constructing its bridge, and making the lateral embankment adjoining the highway ; so to construct them as not to render the approach to the bridge along the highway dangerous for passengers by day or night; and a failure to perform this duty subjects it to liability for the consequences ; provided the party thereby injured has used reasonable and ordinary care to avoid the danger.
This proposition is supported by Barnes vs. Ward 67 Eng. C. L. R., 392, and was affirmed by the Court of Exchequer in Hardcastle vs. S. Y. R. Way, 4 Hurl. & Nor., 67. The same principle was decided in Coggswell vs. Inhabitants of Lexington, 4 Cush., 307 ; Norris vs. Litchfield, 35 N. H., 271 ; Davis vs Hill, 41 N. H , 329 ; Vale vs. Bliss, 50 Barb., 358, and Alger vs. City of Lowell, 3 Allen, 402.
In the case last cited, the Court say, “the true test is not whether the dangerous place is outside the highway, or whether some small strip of ground, not included in the way, must he traversed in reaching the danger; hut whether there is such a risk of a traveller, using ordinary care, in passing along thé street, being thrown or falling into the dangerous place, that a railing is requisite to make the way itself safe and convenient.”
It follows from what has been said, that there was no error in refusing the first, second, third, fifth, and seventeenth prayers of the defendant.
There was evidence in the case that the plaintiff had often crossed the bridge, and was well acquainted with the place and the contiguous grounds and premises, and that on the evening of the accident, at about 7 o’clock, [586]*586and afterwards, at about 8 o’clock, being about to cross, lie was warned by defendant’s watchman of the danger of crossing the bridge, and that he was intoxicated at that time.
The defendant by its eighteenth prayer, asked an instruction to the jury, that if they found the plaintiff was intoxicated at the time of the accident, and also found that he was admonished of the danger of crossing the bridge, that “ these facts were evidence to show a want of .ordinary care to be exercised by the plaintiff, and also to show that the defendant was upon that occasion using due care in preventing accidents by reason of any defect in and about said bridge or said wall.
Unquestionably the facts enumerated in the prayer were proper to be considered by the jury in connection with all the other facts in the case, in passing upon the question of negligence ; but it has- often been decided by this Court, that it is not proper to separate a few facts from their connection with others, and make them the basis of an instruction of this kind. Such a course would tend to mislead the jury; and if the practice were sanctioned, each separate fact might be made the basis of a similar instruction. It maybe added, that by the txoelfth prayer which was granted, the defendant had the benefit of an instruction, that the intoxication of the plaintiff at the time of the accident, if the jury so found, was a circumstance to be considered by them upon the question of the care exercised by him in avoiding the accident. And so far as the eighteenth prayer related to the warning given to the plaintiff, it was not supported by the evidence; for that showed that the only warning given related to the danger arising from the condition of the bridge, and had no reference to the danger that actually befel him. For these reasons we think the eighteenth prayer was properly refused.
The question whether the plaintiff had exercised ordinary and reasonable care to avoid the accident, was one [587]*587for the jury to decide upon all the evidence in the cause ; and there was therefore no error in rejecting defendant’s seventh
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Bartol, C. J.,
delivered the opinion of the Court:
This suit was brought by the appellee to recover damages for injuries sustained by him, from an accident caused by the alleged negligence of the appellant.
The ground of the action is that the Railroad Company in the construction of its bridge across the Potomac, at Harper’s Perry, had made an embankment or precipice twenty feet deep, extending from the end or abutment of the bridge along the river, so near to the highway as to be dangerous to persons approaching the bridge at night; and the plaintiff in attempting to walk upon the bridge for th-e purpose of crossing, missed his way and fell over the precipice. The accident occurred in November, 1867, at about 9 o’clock at night.
The embankment is supported by a wall erected by the defendant, the top of which is on a level with the highway and the contiguous ground ; and the alleged negligence consisted in not providing railing or guards at and along the wall, a light to indicate the entrance to the bridge, or a watchman for the protection of travellers.
On the west side of the bridge next to the retaining wall, there is a highway for common travel, the entrance to which between the columns, is ten feet wide, and by [584]*584the side thereof, between the carriage way and the railroad tracks of the Winchester branch on the west, is a foot-way for travellers; the bridge being designed for ordinary travel in carriages and on foot, as well as for the railways ; the defendant received toll from per sods crossing, and toll was paid by the plaintiff.
There is a space of ground between the highway leading to the bridge, and the retaining wall or edge of the precipice, belonging to the defendant, over which the plaintiff must have passed before he reached the place from which he fell, which according to the testimony, and as indicated on the plat used at the argument, was about ten or fifteen feet from the entrance to the bridge. It thus appears that the accident did not happen upon the highway or the bridge, but outside thereof, on the private property of the defendant, upon which it is alleged the plaintiff had no right to be, and it is contended that this fact deprives him of the right to recover ; and for this proposition we have been referred to Howard vs. Inhabitants of North Bridgewater, 16 Pick., 189 ; Rice vs. Montpelier, 19 Verm., 470 ; Farnum vs. Concord, 2 N. H., 392, and Howland vs. Vincent, 10 Met., 371.
Without stopping now to consider the particular points ruled in those cases, it may be conceded as a general principle that££a traveller who without necessity diverges from the travelled path, cannot recover for injuries received while travelling outside such path." But the facts of this case do not bring it within that general principle. It appears from the proof that the whole surface of the ground about the highway, up to the entrance to the bridge, and out to the edge of the retaining Avail or verge of the precipice was levelled off smooth; there was nothing to indicate the location or line of the highway, or to distinguish it from the contiguous ground on the west side, and a deviation of a few steps in that direction precipitated the plaintiff over the wall.
[585]*585Under such circumstances we hold the law to be clear, both upon reason and authority, that the accidental deviation from the highway such as occurred in this instance, does not necessarily deprive the plaintiff of the right of action.
The law imposed the duty upon the defendant in constructing its bridge, and making the lateral embankment adjoining the highway ; so to construct them as not to render the approach to the bridge along the highway dangerous for passengers by day or night; and a failure to perform this duty subjects it to liability for the consequences ; provided the party thereby injured has used reasonable and ordinary care to avoid the danger.
This proposition is supported by Barnes vs. Ward 67 Eng. C. L. R., 392, and was affirmed by the Court of Exchequer in Hardcastle vs. S. Y. R. Way, 4 Hurl. & Nor., 67. The same principle was decided in Coggswell vs. Inhabitants of Lexington, 4 Cush., 307 ; Norris vs. Litchfield, 35 N. H., 271 ; Davis vs Hill, 41 N. H , 329 ; Vale vs. Bliss, 50 Barb., 358, and Alger vs. City of Lowell, 3 Allen, 402.
In the case last cited, the Court say, “the true test is not whether the dangerous place is outside the highway, or whether some small strip of ground, not included in the way, must he traversed in reaching the danger; hut whether there is such a risk of a traveller, using ordinary care, in passing along thé street, being thrown or falling into the dangerous place, that a railing is requisite to make the way itself safe and convenient.”
It follows from what has been said, that there was no error in refusing the first, second, third, fifth, and seventeenth prayers of the defendant.
There was evidence in the case that the plaintiff had often crossed the bridge, and was well acquainted with the place and the contiguous grounds and premises, and that on the evening of the accident, at about 7 o’clock, [586]*586and afterwards, at about 8 o’clock, being about to cross, lie was warned by defendant’s watchman of the danger of crossing the bridge, and that he was intoxicated at that time.
The defendant by its eighteenth prayer, asked an instruction to the jury, that if they found the plaintiff was intoxicated at the time of the accident, and also found that he was admonished of the danger of crossing the bridge, that “ these facts were evidence to show a want of .ordinary care to be exercised by the plaintiff, and also to show that the defendant was upon that occasion using due care in preventing accidents by reason of any defect in and about said bridge or said wall.
Unquestionably the facts enumerated in the prayer were proper to be considered by the jury in connection with all the other facts in the case, in passing upon the question of negligence ; but it has- often been decided by this Court, that it is not proper to separate a few facts from their connection with others, and make them the basis of an instruction of this kind. Such a course would tend to mislead the jury; and if the practice were sanctioned, each separate fact might be made the basis of a similar instruction. It maybe added, that by the txoelfth prayer which was granted, the defendant had the benefit of an instruction, that the intoxication of the plaintiff at the time of the accident, if the jury so found, was a circumstance to be considered by them upon the question of the care exercised by him in avoiding the accident. And so far as the eighteenth prayer related to the warning given to the plaintiff, it was not supported by the evidence; for that showed that the only warning given related to the danger arising from the condition of the bridge, and had no reference to the danger that actually befel him. For these reasons we think the eighteenth prayer was properly refused.
The question whether the plaintiff had exercised ordinary and reasonable care to avoid the accident, was one [587]*587for the jury to decide upon all the evidence in the cause ; and there was therefore no error in rejecting defendant’s seventh prayer which asked the Court to take that question from the jury and to decide it as a conclusion of law from the facts therein stated. These were not of such a character as to authorize the Court to withdraw the question from the jury, and to declare that they constituted negligence in law.
(Decided 10th July, 1873.)
Upon a careful examination of the whole case, we find no error in the rulings of the Court below upon the prayers. In granting the third and fourth oi the plaintiff and the eight, ninth, tioelfth, fifteenth and sixteenth of the defendant, and in the two instructions given by the Court, the law of the case was clearly and correctly stated to the jury for their direction. It is not material to notice the other prayers of the defendant. These, so far as they stated correct propositions of law were substantially granted in the instructions given to the jury. Their rejection therefore can furnish no ground for reversing the judgment.
It remains only to consider the appcdlant’s first and second bills of exception ; and we are of opinion that the evidence therein stated was properly rejected.
It is contended that it was admissible on the question of damages, to enable the jury to ascertain the loss suffered by the plaintiff, and the amount of compensation to which he was entitled: but evidence that he was a man of intemperate habits, and when intoxicated was unable to transact business could not tend to elucidate that question, and was not admissible for that purpose.
Judgment affirmed.