Hyde v. Town of Jamaica

Opinions were delivered by each of the judges, as follows.

Bennett, J.

If this action can be maintained, (going upon the ground that the intestate was in the exercise of ordinary care, at the time of the accident,) it must be, I apprehend, either because the fordway in question became a part of the highway, which the town was bound to repair, or else because of their neglect to rebuild *454 the bridge within a reasonable time; and their omission, hi the mean time, to build and keep in repair a safe fordway. If it could be established that this fordway became a part of the highway, the case, in my mind, would be free from difficulty on tills point; but a highway is to be established by regular legal proceedings under the statute, or else by dedication or prescription, and I know of no other mode. The road must be opened, before the town can be made liable to a private action, for its insufficiency. To render a town liable in any form of action, even to an indictment for the insufficiency of a road, they must have the right to enter upon the land to make and repair the road. This may be said to be self-evident. See Todd v. Rome, 2 Greenleaf, 55. There is no pretence that the adjoining proprietor’s land, where the fordway was, had been taken for public use, under the statute, which requires compensation to be made. This fordway had not, I think, become a part of the highway by dedication and adoption. No dedication of the land, by the owner, is found; and there was no evidence from which it could be found, and no evidence that the town had opened this fordway for travel as a public highway. The most that can b e said is, the landholder might have suffered it to be used, as a way, and this license was, at his pleasure, countermandable.

To constitute a highway by dedication, which the town are bound to repair, there must be a dedication of the land by the owner, and an acceptance of the dedication by the town; otherwise it would be in the power of an individual to impose upon a town a liability to make and keep in repair a road, nolens, volens. As has already been said, before a town can be made liable, the road must have been opened for travel, either according to the statute, or else, in the case of a dedication, by acquiescence and adoption, as was held in Blodgett v. Town of Royalton, 14 Vt. 290 . In Bailey v. Town of Fairfield, Brayton 128, the road had been used as a road for common travel twelve or thirteen years; yet it was held there must have been some further act on the part of the town, recognizing it as a public highway to make it such. See also Paige v. Weathersfield, 13 Vt. 424 , and Young v. Wheelock, 18 Vt. 495 .

In Estes v. Troy, 5 Green, 368, a user of a road by the town for ten yeárs, it was held, would not oblige them to repair it, and in Curtis v. Hoyt, 19 Conn. 154 , it was expressly held that to *455 create a highway by adoption, the road must have been made and accepted by the public; and the courts of Massachusetts have held that the assent of the town to the dedication must be expressed or implied, and if the road had not, in form, been opened, it must have been in some way adopted by the town. Commonwealth v. Charlestown, 1 Pick. 180 ; Hobbs v. Lowell, 19 Pick. 405 , 411, opinion of Morton, J., and Bowers v. Suffolk Manf. Co., 4 Cush. 340 ; and Rex v. St. Benedict, 4 B. & A. 447 is to the same effect. If, in the ease now before the court, there had been a dedication shown by the landholder, it is clear there was no adoption of the road by the town; and without a dedication, no adoption of it by the town could give them a right to repair, and would be of no avail. The fordway had been used only about twenty days when the accident occurred, and no action had been had in relation to it by the town or their select men. Though the highway surveyor assisted others to draw the stones out of the channel in the fordway, yet nothing was done at the expense of the town, or by the knowledge or direction of the selectmen or agents of the town. The fact that the referee finds that the highway surveyor acted in his official character can avail nothing.

The duties of the highway surveyor are pointed out by statute, and he is simply to repair the highways in his district, and he has no power to lay out new highways, or adopt roads or by-ways already travelled as public highways, and, in this way, impose upon the town the duty of keeping them in repair; and, indeed, the referee does not attempt to find that there was, as matter of fact, an adoption of this fordway, as a part of the highway, by the town or its authorized agents, and certainly no such fact can be inferred from the facts, as reported by him.

Though this fordway had been used at certain times before the bridge, which went off in 1850, was built, and though the stream had been drawn out for that purpose, yet there was no showing by whom it was done. There was no pretence of a dedication of the land, and certainly there could be no implied consent on the part of the town to adopt it as a highway, and, besides, the use of it had been for a long time abandoned. All that can be said is, the landholder had permitted the fordway to be used by the public for the time being.

*456 In Blodgett v. Town of Royalton, 14 Vt. 290 , the county court charged the jury “that if they found the plaintiffs had suffered “ the damage claimed, in consequence of the insufficiency or want “of repair of said road, afterit hadm factbeen opened and travelled “ as a public highway with the knowledge and consent of the select “ men of the town, they might find for the plaintiffs, &c.” Though it is distinctly admitted that a town may adopt a road as a public highway for travel, yet it was held by the supreme court in that case that the above charge was erroneous, and this, upon the ground that the fact that the road had been opened by some one, and had been travelled as a public highway with the knowledge and consent of the selectmen of the town was not sufficient to constitute such an adoption of the road as to render the town liable for its insufficiency. Ch. J. Williams, in his opinion, uses this pertinent language, “ the consent merely of the selectmen, that any “ person should travel on any path, whether a public or a private “ road, is no act, recognizing such a road as a highway for which “ the town is responsible, neither is their knowledge that a traveller “ on such a road supposes it to be a public highway of any impor- “ tance, unless by some act of theirs, it can be inferred that they “ have opened the road or adopt it as a highway to be repaired by “ the town.” We know of no distinction whether the road, for the insufficiency of which it is sought to render the town liable, is more or less important, whether it be the principal road or simply a byroad, which the traveller may have resorted to for the time being. The principle is, that in either case to render the town liable for want of repairs, if it has not been opened according to the requirements of our statute, it must have been adopted by the town or the select men as their agents. A by-way without the limits of a public highway may become an integral part of a highway by adoption, but this must be shown to have been the fact upon competent proof and authority, and the acts of unauthorized agents can not bind the town. To hold that the town are liable for the insufficiency of this fordway, upon the ground that it had been opened by some one, and the town had permitted it to be travelled, while in an unsafe condition, is, to my mind, to hold in direct conflict with the cases of Blodgett v. Royalton and Bailey v. Fairfield, Bray. 128, and in conflict with the statute which confines *457 the right of action to injuries on such roads, as the towns are hound to keep in repair. The fallacy of the position, in my mind, arises from taking for granted the thing in dispute, that is, that the town was legally bound to keep in repair this fordway.

The question then arises, should the town be made responsible because of their neglect to rebuild the bridge within a reasonable time or because of their omission to build a safe fordway. We will consider these inquiries separately; and first, as to the neglect of the town to rebuild the bridge. It may be admitted that the death of the intestate resulted indirectly from the want of a proper bridge, but this was not proximate cause of it. If the town were liable for damages, at common law, for defects in a highway or a bridge which they were bound to keep in repair, the case would indeed be widely different. The principle that if one individual sustains damage from the neglect of another, the latter must be responsible to the former, would then apply; and it would be no answer to say the damages were consequential. The same rule might be applied to a private corporation created for their own benefit. But a town or other municipal corporation, created for the purposes of government are not subjected to the same rule, and no private action will lie against them, at common law, for a neglect of duty, though an individual suffers damage. Brookes, Abr. Title, Action on the case, pi. 93. Russell et al. v. Men of Devon, 2 Term 667. Mower v. Leicester, 9 Mass. 250 ; Chedsey v. Canton, 17 Conn. 475 ; and Reed v. Belfast, 20 Maine, 246. Baxter v. Winooski Turnp. Co. 22, Vt., 114. The case of the Stage Co., decided in Eutland county about the same time, as the case in the 22d Vt. (not reported) must have proceeded upon the same ground. In that case a bridge had been carried off, which the defendant town had omitted wrongfully to repair, and the stage, by reason thereof, had been compelled to go a longer and circuitous route, at an increased expense and delay; and yet the action was not sustained. If the town had been liable to an action at common law, the action should, I apprehend, have been sustained.

This, then, being an action given by statute, we must look to the statute to see its extent. The language is, “ if any special damage “ shall happen to any person, his team, carriage or other property “ by means of the insufficiency or want of repair of any highway *458 “ or bridge in any town, which such town is bound to repair, S?c.” It is well settled in this and in other states, under statutes similar, if not identical with ours, that to warrant a recovery, the damages must be direct to the person of the traveller or his property, and that the insufficiency of the highway or bridge must be the proximate cause of the injury, and that it is not enough that it was the remote cause.

It is upon this principle that the party injured is held to the use of ordinary care, to entitle him to recover. The intestate went without the highway because the bridge was gone ; but the injury arose directly because of his attempt to pass the fordway. The bridge being gone, was the remote or primary cause of the injury; his travelling the fordway the proximate cause. See Trow v. Vt. Central R. Co., 24 Vt. 487 , where the question is fully and ably considered. See also Tisdale v. Town of Norton, 8 Met. 388 ; Holman v. Townshend, 13 Met. 297 ; Harwood v. Lowell, 4 Cush. 310 ; Brailey v. Southborough, 6 Cush. 141 ; Chedsey v. Canton, 17 Conn. 475 ; Reed v. Belfast, 20 Maine, 246. The case Tisdale v. Norton is, in principle, much in point, and almost identical in the facts with the case before the court. The plaintiff in that case, to avoid a gully, which had been in the road twelve days and rendered it wholly impassable,, turned out upon the adjoining lot, and was upset and injured, and the jury had found he exercised due care, but it was held the town was not liable, and upon the ground that the gully in the road was not the proximate cause of the injury. This action, then, cannot, I think, be sustained, by virtue of our statute, simply because the town had neglected to rebuild the bridge within a proper time; and the plaintiff sustained a damage from that neglect as the remote and not the immediate cause. In Baxter v. Winooski Turnpike Co., 22 Vt. 114 it was considered that the damage for which an action could be maintained must result immediately from the insufficiency of the road, and such are the cases in our sister states.

It remains to be seen, whether, upon principle, this action can be sustained, because the town neglected to open and make a safe fordway. If this injury had been caused purely from the ordinary height and force of the water, it would hardly be claimed that the town was liable because they had not built a temporary bridge ; *459 yet, where is the stopping place ? Our statute (Comp. Statutes, Williams’Edition, p. 163) gives the selectmen of a town power, when any highway or bridge shall have been suddenly carried off or swept away, to change them location, if necessary, to lands adjoining, and when so changed they may forthwith open the same forivorhing and public travel, first paying the land damages. But if we suppose they neglect them duty in this respect, there are other methods to compel them to do it, aside of a private action, as was well said by Ch. J. Williams in the case of Young v. Wheeloch, 18 Vt. 497 . See also Farnum v. Concord, 2 N. H. 392. Suppose a town should neglect to work a road, and open it for travel by the time fixed by the court, no one could hardly claim that a private action could be maintained, though an individual might have sustained special damage from such neglect. And where is the difference in principle in the two cases ? The town in the case before us, as the facts stand, had acquired no right to work and repair the fordway, and open it for travel.

If this action can, upon this ground, be maintained, it is because the selectmen of the town neglected an official duty. But official neglect of the agents of a municipal corporation as a town is not to be redressed by private action, unless given by some statute. The statute gives a private action for not keeping the road in repair already opened, not for neglect in opening a road. The two things are quite different.

I apprehend that the intestate had no legal right to pass the fordway, which he could assert even against the landholder. The traveller on a highway, when obstructed by some sudden and temporary cause, may, from necessity, pass upon the adjoining land without being a trespasser ; but it is a non sequitur, that the town, even in that case, would be liable for a defect in the road he chose to travel. See Taylor v. Whitehead, Doug. 745; Bullard v. Harrison, 4 M. & S. 392. 4 Law Lib. 50. Dane Abr. 258. Tisdale v. Norton, 8 Met. 388 ; and Campbell v. Race, 7 Cush. 410 . It is, however, a right of way, originating and continuing in a strict necessity, and in the case from the 7 Cush. 410 , the court say, the right does not rest upon any peculiar ground, but is based upon the familiar principle that to justify or excuse a trespass, inevitable necessity or accident must be shown. If another high *460 way leads to the point of destination, though not as near as the one which is obstructed, and more difficult to be travelled, it then becomes a question of convenience which the traveller will go, and no such necessity exists, as will give a right to turn out upon the adjoining land, or excuse a trespass. Pierce v. Selleck, 18 Conn. 330 Nichols v. Luce, 24 Pick. 102 . Witten v. Harmon, 1 McCord. 65 ; and McDonald v. Lyndon, 3 Rawle. 492. In this latter case, the rule is laid down thus, “ a way of necessity never exists where a “man can get to his own property through his own land, however “ inconvenient the way through his own land may be.” In fact, a way of necessity, ex vi termini, imports a right of passage through the lands of another as indispensible. „ To hold that it may rest in convenience, would be to violate the right of the exclusive dominion, which a man has in his own soil, and the sacredness of which is secured to him by the laws and the constitution. The -intestate- was at North Wardsboro, and wanted to go home, a distance of five miles, and the difference in the two roads only one .hundred and nineteen rods, though it is found the hill road was not as good, and travelling over it tedious and uncomfortable, yet this would not create a right of way of necessity. The intestate went "the:hill road, and could as well have returned that road as the other, although a little more time might have been required. If the intestate had professional engagements which required him to be at home at a given hour, all that was necessary for him to do was to start in season to have met his engagements in going the bill road, and the difference in time required to travel the two roads, starting from the village of North Wardsboro could not be great. He, like other men, was master of Ms own time, and his election as to the road which he would travel was matter of comparative convenience, and not of necesssity. He, then, could not justify his going upon the lands of the adjoinmg proprietor as being of necessity; aud if a trespasser against the landholder, it would seem but a reasonable deduction, that he went at his own peril, and that he could not set up matter which rested in Ms own convenience as a reason why the town should be liable for his misfortune. It might be remarked that the bridge had been gone some time, and this known to the intestate, and the necessity of his returning that way, such as it was, was of his own voluntary creating.

*461 If this fordway had not become a part of the highway and the intestate had no right of way from necessity across it, it is difficult to see how the town can be made responsible for consequences.

The case of Willard v. Newbury, in the 22d of Vt., and of Batty . T. Duxbury, in the 24th of Vt., are much relied upon by counsel, in support of this action; but both are distinguishable from the case at bar. In each, the obstruction of the highway was caused by the action of the railroad company, by their occupying the highway for the construction of their railroad, under the authority of the legislature of this state; and the case of Willard v. New-bury, has but little bearing upon the present case. In that case, the company had laid their road across the highway, and in building an arch for the highway to pass over the railroad, they had obstructed the highway with blocks of granite, and the injury happened to the plaintiff while travelling the old highway; andthg jury had found, that the town were wanting in ordinary^ag^pmjiíí keeping up bars or railing, to warn people of the da*'-— — elling the old road; — the accident happening, in tq night time.

When it was once settled that the town was liabllj and the negligence of the railroad company, it followed^ that that action was well brought. What may have ' the learned judge who gave that opinion, beyond the casej Sumo? be treated as authority. What should have been the result, had the injury happened on a by-way, was a point not before the court, and not decided.

The case of Batty v. Duxbury, 24 Vt. 155 , is more in point; but that case, though similar, in many of its facts, with the case before us, yet it is far, I apprehend, from being identical. In that case, the obstruction of the highway was by a positive act of the railroad corporation, under the authority of the legislature of the state, and the obstruction of the highway was to be permanent. The company had located their railroad nearly one hundred rods upon the highway, and to render the old highway of any use, there must have been a road for public travel without the old highway. Besides, the charter of the railroad company, section 10, gave the company power, when necessary, to locate their road across, or upon, any highway; and it provided, also, that the company should *462 restore the road to its former state and usefulness, as near as practicable, and to the acceptance of the select-men of the town, — and in case of their refusal, to the acceptance of the commissioners appointed to assess land damages. In that case, the only way of restoring the highway to its former usefulness, was by making a new road, as a substitute for so much of the old road as had been taken by the railroad company. When it should become necessary that the highway should be taken to lay the track of the railroad upon, the legislature must have contemplated that the taking of it would operate, practically, to discontinue so much of the old highway, and that the new road was to be substituted in its place, and to possess all the qualities of a highway, and be kept in repair by the town, (especially after it had been accepted by the select-men or commissioners,) and the town would be subject to indictment or private action, for its insufficiency, the same as in case of other roads, under the general laws of the state. Without giving this construction to the 10 th section of the railroad charter, the provision would be incomplete; and, I think, it is fully implied in the act itself, that when the railroad company have made a new road, and it has been accepted by the select-men, or the railroad commissioners, in case of the refusal of the select-men, it becomes, to all intents and purposes, a highway of the town. The railroad company, in the Duxbury case, located their road upon the highway, in the summer and fall of 1849 ; and at that time, the road was in fact occupied by the company, and was impassable; and they then made the new road, upon which the accident happened, and it was used as a way for public travel, from the early part of the fall of 1849, until the 22d of the February following, when the accident happened, for which the suit was brought. We are, of course, to take it that if the company made this new road for the town, they had procured the right of way, by purchase or otherwise, and no question of the kind was raised upon the exceptions in the case.

Though the case shows that the new road had not been accepted by the select-men of the town, in point of fact, nor by the commissioners, yet the town had suffered it to be used by the public, as a public road, for some six months, without any caveat on their part; and this, taken in connection with the fact that the railroad com *463 pany, by their charter, were bound to make this road, in ease of the town, in the place of the road which they had taken from the town, and were thus doing what the town might be compelled to do, shows that there may be some propriety in regarding the railroad company, in a sense, as the agents of the town, so far as the public are concerned, and their acts, as the acts of the town, and conclusively binding upon the town.

The railroad company had made this road for the sole purpose of its being used, as a public highway, and to be accepted of them, by the town, as such; and as it was in fact used as such, by their consent and permission, as the case must necessarily imply, and was the only means by which the old highway could be used, as a road of travel, it is quite clear that it must be taken; that the railroad company acquiesced in this road being opened for travel, as a substitute for the old road, and such as they were bound to make for the public; and it is a question whether their acquiescence may not be regarded as the acquiescence of the town, so far as the public are concerned, and binding upon the town, and that the public should not be called upon to discriminate between the acts of the railroad company and the acts of the town, in relation to the making and opening this road, as a road for public travel.

If this is so, then the fact that the town themselves had never done any act to recognize this new road as a part of the public highway, could have been of no avail; and in the case of Mathews v. Winooski Turnpike Company, 24 Vt. 480 , the same learned judge who pronounced the opinion of the court in the case of Batty v. Duxbury , says, “ the two cases are as nearly the same as it is pos- “ sible to conceive, at least, in principle.”

The Winooski Turnpike Company had, in the case of Mathews, clearly acquiesced in the alteration of their road, as made by the railroad company. They used it as a part of their road, for which they took toll, and repaired it; and the jury under the charge of the county court had found that the turnpike company had adopted the substitute as a part of their road. If the case of Batty v. Buxbury can be treated as one where the town are held liable upon the ground of having, in legal effect, adopted the road that had been made by the railroad company, as a part of their highway, then in principle it is the same as the case of Mathews v. Winooski *464 Turnpike Company, but otherwise the two cases, to my mind, are widely different. I fully accede to the soundness of the decision in the case of Mathews v. W. Turnpike Company, and if the case of Batty v. Duxbury is a case of a legal acquiescence in the adoption by the town of the new road, (of which it is possible there may be some doubt,) I fully accede to that case; but otherwise, I cannot bring my mind to see its soundness; and it appears to me that, upon any other supposition, it is opposed, in principle, to the case of Blodgett v. Royalton, and in effect extends the liability of the town beyond the statute.

But, if we treat the fordway as a part of the highway, I think the plaintiff cannot recover. To entitle him to a judgment, the intestate must have been in the exercise of ordinary care at the time the accident occurred. The report finds, that a man of ordinary care and prudence, would not have attempted to ford the stream, at the 'time and place the intestate did, unless, as matter of law, it is allowable to take into consideration his motives, or, in other words, the urgency of his business, and in that event, the referee exculpates the intestate from the charge of a want of ordinary care, in essaying to pass the stream. I apprehend the true inquiry in a case like this would | be, had the intestate, as a man of ordinary prudence, after making | suitable observation and examination, good reason to believe that, with due care, he could pass in safety. If he had, he was justified in making the attempt, whether he had any special business, or was merely on an excursion of pleasure. If he had not good reason to believe that he should go over in safety, but from the urgency of his business was led to try it, when otherwise he ought not, and would not have done it, it strikes me he took the risk upon himself. If the question of ordinary care is to be graduated according to the urgency of a man’s business, the rule would be a very sliding one, and of the most difficult application. I should apprehend the good sense of the case would require that all those circumstances should be taken into consideration, which go to increase or diminish the probability that the stream could be passed in safety, and without accident, and that beyond this we cannot go; and whether the travI oiler would, in every reasonable probability, pass in safety, was in ? no way dependent upon the urgency of his business. It does not appear that there was any primary necessity, that the intestate *465 should have returned the “ Branch ” road. The Hill road was but 119 rods further, and there could not have been a great difference in the time required to travel it, and it must have been to a great extent a question of convenience with the intestate, which road he would travel.

This may be very material on the question of ordinary care, if we are to taire into the account the urgency of a man’s business. But I apprehend the true rule is, to regard such facts and circumstances only, as either directly or indirectly bear upon the hazard or safety of the undertaking. No one can suppose that the intestate intended to act rashly, but that is not the question. Did he in fact act with ordinary prudence ? It is not what he may have thought about it. His own idea of his own conduct, cannot make evidence for him, thought it might be evidence against him. But suppose it be granted that the intestate was not in fault in attempting to pass the stream. This is not, I think enough. He must have driven with due care and prudence while in the stream. No principle is better settled, than the one which requires of the traveller due care at the time when the accident happened, and the use of every reasonable means to avoid injury. The report finds distinctly that there was no evidence to prove what took place, after the intestate entered the stream, or of the particular manner in which the accident happened.

The exercise of ordinary care is not to be presumed, but it must be proved as an affirmative fact and the burden of proof is upon the plaintiffs. If the proof is insufficient, the consequences must fall where the onus prolandi rests. Lester v. Pittsford, 7 Vt. 162. Adams v. Carlisle, 21 Pick. 146 . Merrill v. Hampton, 26 Maine; 231. See also 31 Maine, 228. Spencer v. Utica & Sch. P. Co. 5 Barb. 337 .

Special care is always necessary in driving through a high stream; unless the horse is driven with a taut rein and pressed forward, he will almost be sure to be carried down stream, and to my mind it is highly probable, that the horse in this case was induced to give way to the force of the stream by being driven with a slack rein, or permitted to falter in his course.

Considering this case of very considerable importance, and it having been twice very fully argued, I have been led to examine *466 the various positions taken by counsel, both upon principle and authority, as they present themselves to my mind; and for the reasons which I have assigned, I think the plaintiff cannot retain his judgment in the county court, and in that opinion my brother Isham concurs, not intending to express any opinion as I understand him, as to the liability of the town for any insufficiency in the fordway. The judgment of the county court is therefore reversed, and judgment on the report for the defendants to recover their costs.

Isham, J.

I think this action cannot be sustained. The referee has stated in his report, “that a person of ordinary prudence, “ merely desirous to make progress in his journey, but actuated by “ no particular motive for haste, and driving such a horse as was “ driven by Dr. Hyde, would not have ventured to attempt to cross “ the stream at that time and place.” This fact, independent of all other considerations which have been urged, should determine the result of the case. It has uniformly been held, in cases of this character, “ that, if the injury was occasioned, wholly or in part, “ by the negligence or misconduct of the party himself, he cannot “ recover.” If the injury was the result of a want of ordinary care, by the plaintiff, or of causes which common sagacity and forecast could have anticipated and provided against, no action can be sustained. Noyes v. Morristown, 1 Vt. 35-3. Briggs v. Guilford, 8 Vt. 264 . Lester v. Pittsford, 7 Vt. 158 . Kelsey v. Glover, 15 Vt. 708 .

The question in relation to the exercise of ordinary care, by Dr. Hyde, on that occasion, is not affected by any confidence or belief" which he may have had that the stream could be forded with safety. His personal convictions of that character, however strong they may have been, are not to be taken into consideration in ascertaining whether he was, on that occasion, in the exercise of ordinary prudence. In the case of Vaughan v. Menlove, 7 C. & Payne, 525, 3 Bing. N. C. 468, it was held by Tindal, Ch. J., “ that the party “ was, under the circumstances, bomid to adopt such measures as “ might be supposed would be adopted by a man of ordinary care “ and prudence; and that it was not enough to show that he had acted bona fide, and according to the best of his own individual *467 “ judgment; — a doctrine,” he observed, “ that would utterly preclude “ any certain and intelligible rule on the subject.” Ordinary care, is that degree of diligence, which is exercised by men of ordinary prudence, when placed under similar circumstances. It involves the consideration of the difficulties and obstacles to be overcome, and the means or power of the party to overcome them. If men of ordinary prudence would regard the ability of the party inadequate for that purpose, without hazard or danger, the risk should not be assumed; for, no action will lie for injuries arising in that manner.

The facts found by the referee places this case, I think, within the application of this principle. . The desire of Dr. Hyde, to proceed in haste, however strong or humane may have been his motive, or important his business, does not affect the case, or the question of his exercise of ordinary prudence on that occasion. His motive or desire did not, and, from the nature of the case, could not, increase his power or ability to overcome the difficulties which existed in crossing the stream. Whether those motives existed or not, the same disproportion existed between his power of resistance, and the difficulties to be resisted and overcome. If there would be a want of ordinary care or prudence when no such desire or motive existed, it would be equally so when they did exist; for, in each case, the liability to accident and injury is equally as certain and unavoidable. It is very true, that a person influenced by the considerations and motive, which, it is said, influenced Dr. Hyde on that occasion, would be induced to become venturesome, and would encounter greater hazards. But if he steps beyond the bounds of ordinary prudence and care, it is done on his own responsibility, and not at the risk of the town.

The most favorable light in which this case can be considered, on the part of the plaintiff, is to regard it as one of mutual negligence in these paz-ties. Assuming, for the purposes of this case, that the town were under obligation to make this road, to put and keep the same in repair for public use and travel, and that they have been negligent in these particulars ; still, Dr. Hyde was not in the exercise of ordinary prudence in attempting to cross the stream on that occasion. The accident which occurred, and the injury which has been sustained, was the immediate and proximate result of this *468 want of ordinary care on the part of Dr. Hyde. Under such circumstances, there is great unanimity in the authorities, that this action cannot be sustained. The case of Tisdale and wife v. The Inhabitants of Norton, 8 Met. 888 , is very analogous to this case, and it would seem to be decisive.