The opinion of the court was delivered by
Ross, J.
I. The plaintiff was injured on a so-called winter road. This winter road was. some thirty rods in length, nearly parallel with the regular highway, had been used thirty or forty years as a winter road, when the highway between its termini was impassable by reason of drifts, had been broken out for thirteen years by the highway surveyor, and broken out and repaired by him that winter. There was no evidence that the selectmen ever opened, or that they or the town ever recognized or adopted, this road as a public highway, or as a by-way, except from the facts [136]*136before stated. The facts, of which the foregoing are a brief statement, the County Court understand were uncontroverted. The regular highway was substantially conceded to have been a public highway for whose sufficiency the defendant was liable. The counsel requested the court to hold, that the plaintiff could not recover, because, 1. The accident did not occur within the limits of a public highway ; 2. The accident having occurred without the limits of a public highway, the plaintiff could not recover under his declaration, which alleged that it occurred on a public highway. The court overruled these objections, and held that the town was responsible for the winter road, and that the declaration was sufficient. To this the defendant excepted. In this we think there was no apparent error. As has been repeatedly held, the highway surveyor by his unauthorized acts, that is, when he acts outside the scope of his tax-bill and warrant, cannot, by adoption dr otherwise, create a highway, for even a temporary purpose, for the sufficiency of which the town will be liable. When he expends money on a road embraced within his tax-bill and warrant, he acts by authority of the selectmen in regard to a matter within their jurisdiction, and his acts tend to show an adoption of the road by the town as a public highway, or as a way which the traveller may lawfully use. Where the regular highway is impassable, and a by-way or temporary way is opened by the authority of the selectmen, the town becomes responsible to a traveller for its condition. Although no direct authority of the selectmen for opening and using this particular piece of road was shown, yet, from the length of time it had been used as such, from the fact that every year the regular highway became impassable by drifts, and from the number of successive years the highway surveyor had broken it out and turned the' travel over it, it was inferable that it had been done with the' acquiescence if not by the authority of the selectmen of the defendant, who were charged with the duty of keeping the highways of the town in a reasonably safe condition at all seasons of the year. The majority of the court .understand that the defendant asked the court to rule the law of the case on the uncontradicted facts in the case bearing on this question, and so authorized the court to legally [137]*137infer that the action of the highway surveyor was authorized by the selectmen. If, after this ruling by the court was made, the defendant had asked to go to the jury to have them infer the authorization of the acts of the highway surveyor, a different question would have arisen, on which we express no opinion. If the winter road was properly a by-way, or a temporary way, for the sufficiency of which the defendant was liable to the plaintiff, as to him, at that time and on that occasion, it was a public highway ; and he might well describe it as such in his declaration, although the town may have acquired no right against the land-owner to maintain it in that place as a public highway, and as between them it was only a by-way, or an occasional way. Hence the exceptions in regard to this part of this case are not well taken.
II. The plaintiff testified that he knew the place of the accident was a dangerous place, and had known it for three weeks before the accident. The defendant’s first and second requests on this point are, in substance, that if the plaintiff knew the place was a dangerous place, and voluntarily drove into it and was thereby injured, he was guilty of contributory negligence, and could not recover; and its third request,- that knowing of the defect existing at the place of the accident, he could not recover unless he used more than ordinary care and prudence in driving into it. We think the defendant was not entitled to have these requests complied with. The word dangerous is the opposite of the word safe. When a given place in a highway ceases to be safe it becomes dangerous. While it is reasonably safe the town is not liable though the traveler receives injury thereon. Hence, such instruction would- exonerate the town in all cases where the traveler knew of the defect causing the injury. A bridge, or a smooth well-wrought piece of the highway with a high embankment along its margin, without a railing, is unsafe, and so dangerous, and yet passed and passable by prudent men at the risk of the town if unforeseen accident causing injury should thereby happen thereon. When a given place in a highway becomes so dangerous that ordinarily prudent men knowing its condition would not attempt to pass over it, it might and would probably [138]*138be held negligence for a man knowing its condition to attempt to pass it, such negligence as would defeat a recovery for an injury received in passing over it. Ordinary care and prudence means such care and prudence as the average prudent man would exercise under the like surroundings and in the like situation. The charge of the court on this branch of the case gave the law to the jury substantially as we have stated it. The principles of the law on this point, we think, were correctly set forth in the portion of the charge detailed in the exceptions. They might need some further illustration and application to enable the jury fully to understand, appreciate, and apply them to the facts in the case, and it is stated that such illustrations were given.
III. The exception to the admission of the deposition was not well taken. It would have been better for the magistrate to have taken down the question objected to, and its answer, so that the court could judge of the force of the objection. On his refusal to do so, the counsel of the objecting party should have done so, and have presented it properly vouched for to the County Court. Then that court could have ruled intelligently upon the objection, and if it presented a matter of law and not of discretion, it could have been, revised in this court. As it is, the record discloses no error. If the question was leading, as is now claimed, inasmuch as the County Court might, in its discretion, have allowed it if the witness had been on the stand, and it would not have been révisable in this court, so in its discretion it might have allowed it by admitting the deposition without the commission of legal error.
IV. The court, pro forma, and against the defendant’s exception, allowed the plaintiff to show by a large number of witnesses and depositions, the condition of the road on the Monday preceding the Saturday of the accident, and a different defect from the one claimed to have occasioned the accident, such as recent drifts and new accumulations of snow several days before the alleged accident, and not the existence of a cradle or pitch-hole such as the plaintiff claimed caused the accident; and against like excep[139]
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The opinion of the court was delivered by
Ross, J.
I. The plaintiff was injured on a so-called winter road. This winter road was. some thirty rods in length, nearly parallel with the regular highway, had been used thirty or forty years as a winter road, when the highway between its termini was impassable by reason of drifts, had been broken out for thirteen years by the highway surveyor, and broken out and repaired by him that winter. There was no evidence that the selectmen ever opened, or that they or the town ever recognized or adopted, this road as a public highway, or as a by-way, except from the facts [136]*136before stated. The facts, of which the foregoing are a brief statement, the County Court understand were uncontroverted. The regular highway was substantially conceded to have been a public highway for whose sufficiency the defendant was liable. The counsel requested the court to hold, that the plaintiff could not recover, because, 1. The accident did not occur within the limits of a public highway ; 2. The accident having occurred without the limits of a public highway, the plaintiff could not recover under his declaration, which alleged that it occurred on a public highway. The court overruled these objections, and held that the town was responsible for the winter road, and that the declaration was sufficient. To this the defendant excepted. In this we think there was no apparent error. As has been repeatedly held, the highway surveyor by his unauthorized acts, that is, when he acts outside the scope of his tax-bill and warrant, cannot, by adoption dr otherwise, create a highway, for even a temporary purpose, for the sufficiency of which the town will be liable. When he expends money on a road embraced within his tax-bill and warrant, he acts by authority of the selectmen in regard to a matter within their jurisdiction, and his acts tend to show an adoption of the road by the town as a public highway, or as a way which the traveller may lawfully use. Where the regular highway is impassable, and a by-way or temporary way is opened by the authority of the selectmen, the town becomes responsible to a traveller for its condition. Although no direct authority of the selectmen for opening and using this particular piece of road was shown, yet, from the length of time it had been used as such, from the fact that every year the regular highway became impassable by drifts, and from the number of successive years the highway surveyor had broken it out and turned the' travel over it, it was inferable that it had been done with the' acquiescence if not by the authority of the selectmen of the defendant, who were charged with the duty of keeping the highways of the town in a reasonably safe condition at all seasons of the year. The majority of the court .understand that the defendant asked the court to rule the law of the case on the uncontradicted facts in the case bearing on this question, and so authorized the court to legally [137]*137infer that the action of the highway surveyor was authorized by the selectmen. If, after this ruling by the court was made, the defendant had asked to go to the jury to have them infer the authorization of the acts of the highway surveyor, a different question would have arisen, on which we express no opinion. If the winter road was properly a by-way, or a temporary way, for the sufficiency of which the defendant was liable to the plaintiff, as to him, at that time and on that occasion, it was a public highway ; and he might well describe it as such in his declaration, although the town may have acquired no right against the land-owner to maintain it in that place as a public highway, and as between them it was only a by-way, or an occasional way. Hence the exceptions in regard to this part of this case are not well taken.
II. The plaintiff testified that he knew the place of the accident was a dangerous place, and had known it for three weeks before the accident. The defendant’s first and second requests on this point are, in substance, that if the plaintiff knew the place was a dangerous place, and voluntarily drove into it and was thereby injured, he was guilty of contributory negligence, and could not recover; and its third request,- that knowing of the defect existing at the place of the accident, he could not recover unless he used more than ordinary care and prudence in driving into it. We think the defendant was not entitled to have these requests complied with. The word dangerous is the opposite of the word safe. When a given place in a highway ceases to be safe it becomes dangerous. While it is reasonably safe the town is not liable though the traveler receives injury thereon. Hence, such instruction would- exonerate the town in all cases where the traveler knew of the defect causing the injury. A bridge, or a smooth well-wrought piece of the highway with a high embankment along its margin, without a railing, is unsafe, and so dangerous, and yet passed and passable by prudent men at the risk of the town if unforeseen accident causing injury should thereby happen thereon. When a given place in a highway becomes so dangerous that ordinarily prudent men knowing its condition would not attempt to pass over it, it might and would probably [138]*138be held negligence for a man knowing its condition to attempt to pass it, such negligence as would defeat a recovery for an injury received in passing over it. Ordinary care and prudence means such care and prudence as the average prudent man would exercise under the like surroundings and in the like situation. The charge of the court on this branch of the case gave the law to the jury substantially as we have stated it. The principles of the law on this point, we think, were correctly set forth in the portion of the charge detailed in the exceptions. They might need some further illustration and application to enable the jury fully to understand, appreciate, and apply them to the facts in the case, and it is stated that such illustrations were given.
III. The exception to the admission of the deposition was not well taken. It would have been better for the magistrate to have taken down the question objected to, and its answer, so that the court could judge of the force of the objection. On his refusal to do so, the counsel of the objecting party should have done so, and have presented it properly vouched for to the County Court. Then that court could have ruled intelligently upon the objection, and if it presented a matter of law and not of discretion, it could have been, revised in this court. As it is, the record discloses no error. If the question was leading, as is now claimed, inasmuch as the County Court might, in its discretion, have allowed it if the witness had been on the stand, and it would not have been révisable in this court, so in its discretion it might have allowed it by admitting the deposition without the commission of legal error.
IV. The court, pro forma, and against the defendant’s exception, allowed the plaintiff to show by a large number of witnesses and depositions, the condition of the road on the Monday preceding the Saturday of the accident, and a different defect from the one claimed to have occasioned the accident, such as recent drifts and new accumulations of snow several days before the alleged accident, and not the existence of a cradle or pitch-hole such as the plaintiff claimed caused the accident; and against like excep[139]*139tion, the plaintiff was allowed to show the condition of the old road or public highway five or six rods beyond its intersection with the winter road, a different place from that at which the accident occurred. This evidence, all but the last, having been admitted proforma, it is evident that the County Court regarded its admissibility doubtful, and very likely admitted it against its judgment on the persistent urgency, if not at the risk, of the plaintiff’s counsel. It is not now seriously claimed that this evidence, especially that to show the bad condition of the old highway, was legally admissible, but it is claimed that it could not have prejudiced defendant’s case with the jury. We think this testimony was clearly inadmissible. Beyond the defect in the highway causing the injury, and the condition of the highway each way from the defective place, so far as it had any bearing upon the sufficiency or insufficiency of the defective portion, and the safety or danger to the traveller in passing it, the plaintiff had no right to offer testimony of the condition of the defendant’s highway. If he could give evidence of its condition ten or twenty rods from the place causing the accident, he might a mile or two miles from that place, and the town in such an action would be liable to be obliged to meet and repel attacks upon any portion of its highways wherever situated. Neither had he the right to introduce testimony of the condition of the highway at the place of the accident at other times, except only so long as it remained in substantially the same condition it was in at the time of the accident, or in such a condition that a description of its condition and the changes it had undergone would throw light upon, and aid the jury in determining, its exact condition at the time of the injury.
It is not apparent what its snowy and drifted condition on the Monday before the Saturday of the injury had to do with the cradle-hole which the plaintiff claimed caused the injury, and of the existence of which and of its dangerous character the plaintiff testified he had known for three weeks. If other testimony existed and was introduced which connected this testimony with the existence of the cradle-hole, or with its dangerousness to the traveller, the plaintiff should have had it incorporated into the exceptions. As it stands in the exceptions it was [140]*140inadmissible for any legitimate purpose, and for any purpose, unless it was to create a prejudice in the minds of the jury against the defendant, by leading them to believe that it allowed its roads generally to remain insufficient, and for that reason it ought to be punished. Such testimony is of the most dangerous and prejudicial character to a town in the trial of a cause in which the plaintiff appears before the jury, as did the plaintiff in this case, crippled for life, and whom they would be glad to compensate if they could find any reasonable ground to do so. The admission of this testimony was both a legal, and to the defendant, prejudicial error. Eor this error the judgment of the County Court is reversed, and the cause remanded.