Peters, J.
The plaintiff was traveling with horse and wagon upon a road in the town of Winslow, when his horse took fright at a hole, or at the fresh covering of a hole, in a culvert crossing the road, and by the conduct of the horse the wagon was carried into the ditch, the plaintiff was thrown therefrom, and thereby received a personal injury. The plaintiff alleges that the road was defective for not having a railing between the traveled way and the ditch adjoining.
A question arises,, whether the fright of the horse should be considered the legal cause or any part of the legal cause of the accident. If is admitted that the hole, or the temporary repairing of the hole, had not existed twenty-four hours before the accident happened. Inasmuch as the town would not be liable, as the law then stood, for an injury caused by a defect of which the municipal officers of the town had not twenty-four hours’ actual notice, it is contended by the defendants that, if the hole in the culvert had any force or influence in causing the injury, the plaintiff cannot recover. In other words, one of the positions of kiw relied upon by the defendants is, that the town is to be regarded as being in the same or as good -a condition and position as if no hole in the culvert had ever existed. In still another way the idea may be as well expressed. The town says, we were not responsible for the hole in the culvert, and, if the hole had not been there, the accident would not and could not have happened. Therefore, the defect for-which we were not responsible, must, ex necessitate, be considered to be the legal cause of the accident.
Wo do not concur with the defendants in this view. We think the only purpose of the statute was to screeñ a town, not having” the twenty-four hours’ notice, from the consequences of a defect, in cases where the defect operates as a proximate cause of an injury. Our judgment is that the hole in the culvert might be[534]*534an object or thing without the existence of which the accident could not have happened, and still be no part of the legal cause of the accident. It might have its remote and indirect influence in the same manner that many other objects and things, which are not defects upon a highway, would have in many cases. The statute declares that, under the circumstances in proof, the hole in the culvert shall not be regarded as a defect. So the law says a bit of white paper shall not be. But the hole or the paper may' be the remote, and some real defect be the proximate cause, of an accident.
Suppose, in the case at bar, the horse had not been affrighted, but the driver, using due care, had, under some misjudgnient or miscalculation in driving by the hole, or in passing another team at the place of the hole, caused his team to bo upset at the side of the road, where there should have been a railing, and such an accident would not have occurred but for the hole in the culvert. Wo think in that case the hole in the culvert could not be considered as the real and legal cause of the accident. Everything which induces or influences an accident, does not necessarily and legally cause it.. In the ease supposed, the unrepaired or improperly repaired culvert would have an accidental and casual but not a causal connection with the accident. It might be the "agency,” or "medium,” or "opportunity,” or "occasion,” or " situation,” or "condition,” as it is variously styled, through or by which the accident happened ; but no part of its real and controlling cause. It would be the remote, but not the proximate •cause. O’Brien v. McGlinchy, 68 Maine, at p. 557.
Here, then, must be the proper distinction. If the hole or the horse’s fright at the hole, was the proximate cause of the injury •the plaintiff cannot recover. If it by chance became merely an .agency through which another defect operated to produce the injury, then he can recover.
Now, whether the fright of the horse at the hole shall be .regarded as the true and real cause of the accident, or only a circumstance which permitted it to happen, must depend upon the •extent of the misconduct of the horse. If the horse became by .fright unmanageable, substantially freeing himself from the [535]*535control of the driver, and the upset ensued from such unmanage-ableness, then the fright of the horse should be regarded as a proximate cause, or one of the proximate causes, of the accident. The legal condition of the case would be essentially or precisely the same as existed in the cases cited. Moulton v. Sandford, 51 Maine, 127; Perkins v. Fayette, 68 Maine, 152. There were two causes in those cases, to produce the accident, for one of which the town was not legally responsible. So in the case at bar, under the conditions assumed, two proximate causes would exist, or if only one existed, then the fright of the horse would be the sole cause of the accident.
If, however, the horse, while being properly driven, upon sight of the hole suddenly started or shied, and swerved or sheared a few feet from the direct line of travel, and, through only a momentary loss of control by the driver, threw the wagon into the ditch on account of the want of a railing, and the road Aras defective for want of a railing, in such case the misadventure of the horse should not be considered as causing the accident. Every irregularity in the movement of a horse is not imputable to some fault or vice. Perfection of conduct is not to be expected. We think it Avas correctly said by Chaphan, J., in Titus v. Northbridge, 97 Mass. 266, that "ahorse is not to be considered as uncontrollable that merely shies or starts, or is momentarily not controlled by the driver.”
It is not a fault in a horse to be spirited, or to start up quickly, or to shy and shear from objects to a certain extent. Such things are very common occurrences, and are to be looked for and expected in the use of horses, and cannot be prevented or effectually guarded against by the OAvners or drivers of horses. It is not unreasonable to drive horses of such description upon our public roads. Therefore, it Avould not be reasonable to say that the fright of the horse, under such circumstances and conditions as Ave are hoav assuming, hypothetically, to be true, was a proximate cause of the plaintiff’s injury. There can be no fixed rule defining proximate cause. Much must depend upon the circumstances of each particular ease. Page v. Bucksport, 64 Maine, p. 53.
[536]*536And much depends upon the common sense of the thing. Willey v. Belfast, 61 Maine, p. 575.
It is not an easy thing to establish a general rule as to what ■ may be considered unmanageableness of horses, and much depends upon the circumstances of each case that arises. The distinctions which we make in this case are well established by the cases in Massachusetts and elsewhere. Titus v. Northbridge, supra; Stone v. Hubbardston, 100 Mass. 49; Cushing v. Bedford, 125 Mass. 526; Wright v. Templeton, 132 Mass. 49; Hey v. Philadelphia, 81 Pa. St. 50; Kennedy v. New York, 73 N. Y. 365; Nichols v. Brunswick, 3 Cliff. 81; 2 Thomp. on Neg. 1207, and cases in note.
Upon the motion, we are inclined to set the verdict aside. In our judgments, it did not belong to the plaintiff to complain that the way was defective. He knew* what the road was. His horse declined to pass over it and stopped. He took the risk of forcing- the horse along.
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Peters, J.
The plaintiff was traveling with horse and wagon upon a road in the town of Winslow, when his horse took fright at a hole, or at the fresh covering of a hole, in a culvert crossing the road, and by the conduct of the horse the wagon was carried into the ditch, the plaintiff was thrown therefrom, and thereby received a personal injury. The plaintiff alleges that the road was defective for not having a railing between the traveled way and the ditch adjoining.
A question arises,, whether the fright of the horse should be considered the legal cause or any part of the legal cause of the accident. If is admitted that the hole, or the temporary repairing of the hole, had not existed twenty-four hours before the accident happened. Inasmuch as the town would not be liable, as the law then stood, for an injury caused by a defect of which the municipal officers of the town had not twenty-four hours’ actual notice, it is contended by the defendants that, if the hole in the culvert had any force or influence in causing the injury, the plaintiff cannot recover. In other words, one of the positions of kiw relied upon by the defendants is, that the town is to be regarded as being in the same or as good -a condition and position as if no hole in the culvert had ever existed. In still another way the idea may be as well expressed. The town says, we were not responsible for the hole in the culvert, and, if the hole had not been there, the accident would not and could not have happened. Therefore, the defect for-which we were not responsible, must, ex necessitate, be considered to be the legal cause of the accident.
Wo do not concur with the defendants in this view. We think the only purpose of the statute was to screeñ a town, not having” the twenty-four hours’ notice, from the consequences of a defect, in cases where the defect operates as a proximate cause of an injury. Our judgment is that the hole in the culvert might be[534]*534an object or thing without the existence of which the accident could not have happened, and still be no part of the legal cause of the accident. It might have its remote and indirect influence in the same manner that many other objects and things, which are not defects upon a highway, would have in many cases. The statute declares that, under the circumstances in proof, the hole in the culvert shall not be regarded as a defect. So the law says a bit of white paper shall not be. But the hole or the paper may' be the remote, and some real defect be the proximate cause, of an accident.
Suppose, in the case at bar, the horse had not been affrighted, but the driver, using due care, had, under some misjudgnient or miscalculation in driving by the hole, or in passing another team at the place of the hole, caused his team to bo upset at the side of the road, where there should have been a railing, and such an accident would not have occurred but for the hole in the culvert. Wo think in that case the hole in the culvert could not be considered as the real and legal cause of the accident. Everything which induces or influences an accident, does not necessarily and legally cause it.. In the ease supposed, the unrepaired or improperly repaired culvert would have an accidental and casual but not a causal connection with the accident. It might be the "agency,” or "medium,” or "opportunity,” or "occasion,” or " situation,” or "condition,” as it is variously styled, through or by which the accident happened ; but no part of its real and controlling cause. It would be the remote, but not the proximate •cause. O’Brien v. McGlinchy, 68 Maine, at p. 557.
Here, then, must be the proper distinction. If the hole or the horse’s fright at the hole, was the proximate cause of the injury •the plaintiff cannot recover. If it by chance became merely an .agency through which another defect operated to produce the injury, then he can recover.
Now, whether the fright of the horse at the hole shall be .regarded as the true and real cause of the accident, or only a circumstance which permitted it to happen, must depend upon the •extent of the misconduct of the horse. If the horse became by .fright unmanageable, substantially freeing himself from the [535]*535control of the driver, and the upset ensued from such unmanage-ableness, then the fright of the horse should be regarded as a proximate cause, or one of the proximate causes, of the accident. The legal condition of the case would be essentially or precisely the same as existed in the cases cited. Moulton v. Sandford, 51 Maine, 127; Perkins v. Fayette, 68 Maine, 152. There were two causes in those cases, to produce the accident, for one of which the town was not legally responsible. So in the case at bar, under the conditions assumed, two proximate causes would exist, or if only one existed, then the fright of the horse would be the sole cause of the accident.
If, however, the horse, while being properly driven, upon sight of the hole suddenly started or shied, and swerved or sheared a few feet from the direct line of travel, and, through only a momentary loss of control by the driver, threw the wagon into the ditch on account of the want of a railing, and the road Aras defective for want of a railing, in such case the misadventure of the horse should not be considered as causing the accident. Every irregularity in the movement of a horse is not imputable to some fault or vice. Perfection of conduct is not to be expected. We think it Avas correctly said by Chaphan, J., in Titus v. Northbridge, 97 Mass. 266, that "ahorse is not to be considered as uncontrollable that merely shies or starts, or is momentarily not controlled by the driver.”
It is not a fault in a horse to be spirited, or to start up quickly, or to shy and shear from objects to a certain extent. Such things are very common occurrences, and are to be looked for and expected in the use of horses, and cannot be prevented or effectually guarded against by the OAvners or drivers of horses. It is not unreasonable to drive horses of such description upon our public roads. Therefore, it Avould not be reasonable to say that the fright of the horse, under such circumstances and conditions as Ave are hoav assuming, hypothetically, to be true, was a proximate cause of the plaintiff’s injury. There can be no fixed rule defining proximate cause. Much must depend upon the circumstances of each particular ease. Page v. Bucksport, 64 Maine, p. 53.
[536]*536And much depends upon the common sense of the thing. Willey v. Belfast, 61 Maine, p. 575.
It is not an easy thing to establish a general rule as to what ■ may be considered unmanageableness of horses, and much depends upon the circumstances of each case that arises. The distinctions which we make in this case are well established by the cases in Massachusetts and elsewhere. Titus v. Northbridge, supra; Stone v. Hubbardston, 100 Mass. 49; Cushing v. Bedford, 125 Mass. 526; Wright v. Templeton, 132 Mass. 49; Hey v. Philadelphia, 81 Pa. St. 50; Kennedy v. New York, 73 N. Y. 365; Nichols v. Brunswick, 3 Cliff. 81; 2 Thomp. on Neg. 1207, and cases in note.
Upon the motion, we are inclined to set the verdict aside. In our judgments, it did not belong to the plaintiff to complain that the way was defective. He knew* what the road was. His horse declined to pass over it and stopped. He took the risk of forcing- the horse along. To decide whether, as far as concerns the plaintiff, the road was defective or not, we must take it as it would have been without any hole in or repairs upon the culvert, inasmuch as for that temporary condition of the culvert the town was not then responsible. That element in the description of the road must be excluded from the consideration. Probably the jury failed to exclude it in forming their conclusion. The culvert itself is not complained of. The allegation in the writ is, that there was no railing at the side of the road, and not that there was none upon the culvert. The plaintiff testified : " It (wagon) dropped off before it g-ot to the crossway. It was not the want of a railing to the crossway of which I complained. I complain of the want of a railing where I went into the ditch. That was six feet south of the crossway.” The culvert was of an ordinary character. The opening- of the culvert was only about two feet wide and seven inches in height, covered by a thickness of nineteen inches of earth, plank and ties. The road on both sides of the culvert was a level, smooth country road, twenty-three feet between its ditches. There was nothing to prevent travelers using that width of road. The plaintiff’s vehicle required less than six feet of this space. The ditch on the south[537]*537erly side is the only defect complained of. This was but twenty-seven inches deep at the most. The plaintiff contends that there should have been a railing between the ditch and the traveled way. There are many thousands'of such places within this state. If railings were required for them, towns would have extraordinary burdens to maintain their roads. The plaintiff had twenty-three feet of width of road for his team about five feet wide, to pass over in the light of day. We feel well assured that some' cause other than a defective way, for which the town was answerable, produced the accident.
Motion sustained.
Appleton, C. J., Walton, Danforth and Virgin, JJ., concurred.
Barrows, J., concurred in the result.