Shepley, C. J.
The female plaintiff received a bodily injury while traveling on a highway, which the defendants were by law obliged to make safe and convenient. The statute c. 25, § 89, provides, if any person shall receive any bodily injury “ through any defect or want of repair” „of such way, he may recover “ the amount of damage sustained thereby.”
Persons may be injured while traveling on the highways without being blame-worthy and without the fault of those who are required to make the ways safe and convenient, or of others. In such cases the risk is their own. They must bear their own misfortunes. They cannot call upon others as insurers of their safety.
They may also suffer injury, while traveling' upon highways, which are not safe and convenient, and the injury may not be occasioned by the want of repair, or by their own want of ordinary care to avoid it. In such case it would, be [50]*50quite clear, that they could not recover damages of those, who were in fault by neglecting to keep the way safe and convenient. The statute was not designed to relieve them from damages thus occasioned by making those responsible, whose duty it was to have repaired the ways.
An injury may also be occasioned by the united effect of a defect in the way and of some other cause, and in such case the party injured cannot recover of those whose duty it was to keep the way in repair, because he does not prove, that the injury was occasioned through or by reason of such want-of repair. To enable him to recover he should prove that the injury was thus occasioned, that is, that it was entirely occasioned through such want of repair; for the statute was not intended to impose upon towns the burden of making compensation for injuries not occasioned by their own neglect of duty; was not intended to make them assume any portion of the risk of traveling not occasioned by their neglect. An injury cannot be determined to have been occasioned by a defect in the way so long as it remains certain, that some other cause contributed to produce that injury. Such is the law, when the injury is alleged to have been occasioned by the negligence of another person. And numerous cases show, that the same rule is applicable, when the action is brought against a town to recover damages for an injury occasioned by a defect in a highway.
In the case of Knapp v. Salsbury, 2 Camp. 500, Lord Ellenborough instructed the jury, “ if what has happened arose from inevitable accident or from the negligence of the plaintiff, to be sure the defendant is not liable.”
In the case of Plushwell v. Wilson, 5 C. & P. 375, the jury were instructed, “ that if the plaintiff’s negligence in any way concurred in producing the injury, the defendant would be entitled to the verdict.”
In the case of Williams v. Holland, 6 C. & P. the jury were instructed, “ if the injury was occasioned partly by the negligence of the defendant and partly by the negligence of the plaintiff’s son, the verdict could not be for the plaintiff.”
[51]*51In the case of Lynch v. Nurdin, 1 Ad. & El. N. S. 30, the servant of the defendant had left his horse and cart in the street unattended for half an hour. The plaintiff, a boy under seven years of age, got upon it, and while he was getting off the shaft, another boy started the horse, and the plaintiff fell, the wheel passed over and broke his leg. Lord Denman, in delivering the opinion, makes a remark, which if alone considered would lead to a different conclusion, but when considered in connexion with the instruction to the jury, and their finding, and with other remarks in the same opinion, can be regarded only as an obiter dictum. While commenting upon the case of Bird v. Holbrook, 4 Bing. 628, he observes, “ and so far is his lordship from avowing the doctrine, that the plaintiff’s concurrence in producing the evil debars him from his remedy, that he considers Ilott v. Wilkes, 3 B. & Ald. 304, an authority in favor of the action.” If this were to be considered as presenting the law of that case, it would be opposed to the whole current of authority in that country and in this, that when the injury is occasioned by the negligence of the defendant and the want of ordinary care on the part of the plaintiff, he will not be entitled to recover.
But such does not appear to have been the law of that case as held by the presiding Judge or by the court in bank. Mr. Justice Williams left it to the jury to decide, “ whether that negligence occasioned the accident.” And lord Denman in his opinion, while speaking of defendant’s servant, says, “ he has been the real and only cause of the mischief’; and says, “it was properly left to the jury, with whose opinion we concur.”
In the case of Bird v. Holbrook, referred to by his lordship, the defendant had set a spring gun in his garden; the plaintiff passed over the garden wall without license to get a fowl, that had strayed, without knowing that a spring gun was there, and stepped upon the wire attached to it, by which the gun was discharged and the injury occasioned. The only blame imputed to the plaintiff was, that he went into the garden without leave. It was not pretended, that such unlawful act [52]*52contributed to discharge the gun. He does not appear to have been charged with negligence in stepping upon the wire.
Is the reason for the rule so thoroughly established, that the plaintiff cannot recover when the injury was occasioned by the neglect of the defendant, and by his own want of ordinary care, that he is estopped by his want of ordinary care ? By no means; for then he could not recover, if he was not in the exercise of ordinary care although it did not in any degree contribute to cause the injury. The rule deducible from the decided cases is stated in the case of Kennard v. Burton, 25 Maine, 39; “ if the party, by the want of ordinary care, contributed to produce the injury, he will not be entitled to recover. But if he did not exercise ordinary care, and yet did not by the want of it contribute to produce the injury, he will be entitled to recover.” The last position is correct, because in such case, the sole cause of the injury is imputable to another, who cannot complain of' the negligence of the plaintiff, which occasioned no injury, produced no effect.
And for the like reason, if the sole cause of the injury was not imputable to another, the plaintiff would not be entitled to recover, although it might not be imputable to his own negligence, but to “inevitable accident.”
In the case of Smith v. Smith, 2 Pick. 621, Parker, C. J. gives the true reason, why one not in the exercise of ordinary care, cannot recover against one guilty of negligence; he says, “ and where he has been careless, it cannot be known, whether the injury is wholly imputable to the obstruction, or to the party complaining.”
The conclusion cannot therefore be avoided, that the plaintiff must prove, that the injury was occasioned by the default of the defendant alone, and not by that default and some other cause, for which the defendant is not responsible, without a disregard of the whole class of cases, which decide that the plaintiff cannot recover, when the injury is occasioned by the default of the plaintiff, and of defendant.
The doctrine, that the plaintiff can only recover when the injury complained of did not happen by inevitable accident, [53]
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Shepley, C. J.
The female plaintiff received a bodily injury while traveling on a highway, which the defendants were by law obliged to make safe and convenient. The statute c. 25, § 89, provides, if any person shall receive any bodily injury “ through any defect or want of repair” „of such way, he may recover “ the amount of damage sustained thereby.”
Persons may be injured while traveling on the highways without being blame-worthy and without the fault of those who are required to make the ways safe and convenient, or of others. In such cases the risk is their own. They must bear their own misfortunes. They cannot call upon others as insurers of their safety.
They may also suffer injury, while traveling' upon highways, which are not safe and convenient, and the injury may not be occasioned by the want of repair, or by their own want of ordinary care to avoid it. In such case it would, be [50]*50quite clear, that they could not recover damages of those, who were in fault by neglecting to keep the way safe and convenient. The statute was not designed to relieve them from damages thus occasioned by making those responsible, whose duty it was to have repaired the ways.
An injury may also be occasioned by the united effect of a defect in the way and of some other cause, and in such case the party injured cannot recover of those whose duty it was to keep the way in repair, because he does not prove, that the injury was occasioned through or by reason of such want-of repair. To enable him to recover he should prove that the injury was thus occasioned, that is, that it was entirely occasioned through such want of repair; for the statute was not intended to impose upon towns the burden of making compensation for injuries not occasioned by their own neglect of duty; was not intended to make them assume any portion of the risk of traveling not occasioned by their neglect. An injury cannot be determined to have been occasioned by a defect in the way so long as it remains certain, that some other cause contributed to produce that injury. Such is the law, when the injury is alleged to have been occasioned by the negligence of another person. And numerous cases show, that the same rule is applicable, when the action is brought against a town to recover damages for an injury occasioned by a defect in a highway.
In the case of Knapp v. Salsbury, 2 Camp. 500, Lord Ellenborough instructed the jury, “ if what has happened arose from inevitable accident or from the negligence of the plaintiff, to be sure the defendant is not liable.”
In the case of Plushwell v. Wilson, 5 C. & P. 375, the jury were instructed, “ that if the plaintiff’s negligence in any way concurred in producing the injury, the defendant would be entitled to the verdict.”
In the case of Williams v. Holland, 6 C. & P. the jury were instructed, “ if the injury was occasioned partly by the negligence of the defendant and partly by the negligence of the plaintiff’s son, the verdict could not be for the plaintiff.”
[51]*51In the case of Lynch v. Nurdin, 1 Ad. & El. N. S. 30, the servant of the defendant had left his horse and cart in the street unattended for half an hour. The plaintiff, a boy under seven years of age, got upon it, and while he was getting off the shaft, another boy started the horse, and the plaintiff fell, the wheel passed over and broke his leg. Lord Denman, in delivering the opinion, makes a remark, which if alone considered would lead to a different conclusion, but when considered in connexion with the instruction to the jury, and their finding, and with other remarks in the same opinion, can be regarded only as an obiter dictum. While commenting upon the case of Bird v. Holbrook, 4 Bing. 628, he observes, “ and so far is his lordship from avowing the doctrine, that the plaintiff’s concurrence in producing the evil debars him from his remedy, that he considers Ilott v. Wilkes, 3 B. & Ald. 304, an authority in favor of the action.” If this were to be considered as presenting the law of that case, it would be opposed to the whole current of authority in that country and in this, that when the injury is occasioned by the negligence of the defendant and the want of ordinary care on the part of the plaintiff, he will not be entitled to recover.
But such does not appear to have been the law of that case as held by the presiding Judge or by the court in bank. Mr. Justice Williams left it to the jury to decide, “ whether that negligence occasioned the accident.” And lord Denman in his opinion, while speaking of defendant’s servant, says, “ he has been the real and only cause of the mischief’; and says, “it was properly left to the jury, with whose opinion we concur.”
In the case of Bird v. Holbrook, referred to by his lordship, the defendant had set a spring gun in his garden; the plaintiff passed over the garden wall without license to get a fowl, that had strayed, without knowing that a spring gun was there, and stepped upon the wire attached to it, by which the gun was discharged and the injury occasioned. The only blame imputed to the plaintiff was, that he went into the garden without leave. It was not pretended, that such unlawful act [52]*52contributed to discharge the gun. He does not appear to have been charged with negligence in stepping upon the wire.
Is the reason for the rule so thoroughly established, that the plaintiff cannot recover when the injury was occasioned by the neglect of the defendant, and by his own want of ordinary care, that he is estopped by his want of ordinary care ? By no means; for then he could not recover, if he was not in the exercise of ordinary care although it did not in any degree contribute to cause the injury. The rule deducible from the decided cases is stated in the case of Kennard v. Burton, 25 Maine, 39; “ if the party, by the want of ordinary care, contributed to produce the injury, he will not be entitled to recover. But if he did not exercise ordinary care, and yet did not by the want of it contribute to produce the injury, he will be entitled to recover.” The last position is correct, because in such case, the sole cause of the injury is imputable to another, who cannot complain of' the negligence of the plaintiff, which occasioned no injury, produced no effect.
And for the like reason, if the sole cause of the injury was not imputable to another, the plaintiff would not be entitled to recover, although it might not be imputable to his own negligence, but to “inevitable accident.”
In the case of Smith v. Smith, 2 Pick. 621, Parker, C. J. gives the true reason, why one not in the exercise of ordinary care, cannot recover against one guilty of negligence; he says, “ and where he has been careless, it cannot be known, whether the injury is wholly imputable to the obstruction, or to the party complaining.”
The conclusion cannot therefore be avoided, that the plaintiff must prove, that the injury was occasioned by the default of the defendant alone, and not by that default and some other cause, for which the defendant is not responsible, without a disregard of the whole class of cases, which decide that the plaintiff cannot recover, when the injury is occasioned by the default of the plaintiff, and of defendant.
The doctrine, that the plaintiff can only recover when the injury complained of did not happen by inevitable accident, [53]*53or by the want of ordinary care on the part of the plaintiff, or by a combination of these with the want of repair of a highway, appears to be the only one consistent with sound reasoning, and to have been generally received and acted upon. It is difficult to perceive how any other doctrine can be received, without producing the effect to make towns liable to pay damages for injuries not proved to have been occasioned by their ^neglect. No proof can establish that fact, so long as it appears that some other cause contributed to produce the result. It was accordingly decided in Libbey v. Greenbush, 20 Maine, 47, that “ the plaintiff had not fully established his right to recover, so long as this question was left in doubt.”
The necessity, that the injury should be proved to have been occasioned by the neglect of the defendants alone, and not by that combined with another cause, for which the defendants were not responsible, has been the more carefully considered, because it would appear from the cases cited by the counsel for the plaintiffs, that a different rule has received the approbation of a court entitled to such high respect and approbation, as the court of Vermont.
In the case of Adams v. Carlisle, 21 Pick. 146, it is said, that two things must concur, first, that the highway was out of repair, and secondly, that the party complaining was driving with ordinary care and skill. It is obvious, that another element of proof, not then requiring the consideration of the court, was necessary. Proof that the injury was occasioned by a want of repair of the highway.
The cases of Bird v. Holbrook and Lynch v. Nurdin decide no more, than the admitted doctrine, that a plaintiff, who has been in fault or negligent, may recover, when such fault or negligence has not contributed to occasion the injury.
If the jury had found in this case, that the. highway was not safe and convenient, that the injury was not occasioned solely thereby, but by that and defects in the wagon and harness, which rendered them unsuitable and unsafe, without blame being imputable therefor to the plaintiffs, and the case [54]*54had upon such finding been submitted to the court, to render judgment according to the rights of the parties, the accuracy of the instructions would be tested by the judgment to be rendered. And it could not be entered against the defendants without making them responsible for an injury partly occasioned by an unavoidable accident, and partly by their neglect. And such a judgment would make the town, when its ways were not in repair, an insurer against injuries, not occasioned by its own negligence, but partly by inevitable accident.
It is alleged in argument, that the instructions made the plaintiffs responsible for the exercise of more than ordinary care ; that the utmost caution and watchfulness was required. The fallacy of the argument consists in the omission to distinguish between the liability of the ^plaintiffs to suffer from inevitable accidents, or such as were occasioned without their own fault, and not wholly by the fault of the defendants, for which they can recover no compensation, although in the exercise of the utmost possible care ; and those accidents which are occasioned by the fault of the defendants alone, for which they may recover, unless their own want of ordinary care contributed to produce the injury. The instructions required of the plaintiffs the exercise of ordinary care only, while they protected the defendants from the payment of damages, occasioned by a combination of causes, for some of which they were not responsible. They held the plaintiffs liable fo suffer, without obtaining compensation for damages occasioned by inevitable accident arising from defects in the harness and wagon, or by such defects contributing in combination with defects in the highway, to their injury.
The whole merits of the case, and the accuracy of the instructions depend upon a decision of the question, whether the defendants are liable to make compensation for an injury occasioned not alone by a defect in the highway, but by ’such defect and other causes, for which they are not responsible ; and that question has not only been already decided in this State, but the principle, upon which all the cases rest, that determine, that a plaintiff cannot recover, when the injury has [55]*55been occasioned partly by his own negligence, and partly by the negligence of the defendant, forbids any change of that decision. Exceptions overruled.