Chapman, C. J.

In order to render a town or city liable on account of an accident happening on a highway, it must happen to a traveller, and the defect of the way must be the sole cause of the injury. Rowell v. Lowell, 7 Gray, 100. Stickney v. Salem, 3 Allen, 374. If a horse gets loose and runs upon the highway, the town is not liable. Richards v. Enfield, 13 Gray, 344. In Davis v. Dudley, 4 Allen, 557, this principle was applied to a case where the horse escaped from his driver while travelling on the way. In Titus v. Northbridge, 97 Mass. 258, and Horton v. Tawnton, Ib. 266, it was applied to cases where the horse had not escaped from the driver, but had got entirely beyond his control. In those cases there was no evidence sufficient in law to establish the fact that the driver was exercising any control over his horse, or that the defect m the highway was the sole cause of the injury.

It is the duty of the court to decide such cases as presenting *99merely a question of law upon the sufficiency of the evidence in law to authorize a verdict for the plaintiff. But the circumstances under which accidents occur must vary indefinitely; and where a case arises in which there is some substantial evidence upon which it would be competent to find a verdict for the plaintiff, a question of fact is presented which is to be submitted to the jury. In all the cases cited, this distinction has been kept in view. From the nature of the case, it must often require a very careful analysis of the evidence to decide whether it raises a question of fact for the jury or a question of law for the court.

In the present case there was some evidence for the plaintiffs sufficient to authorize the presiding judge to submit it to the jury. He did so with careful and accurate instructions in respect to the law. Upon a comparison of the testimony of Miss Babson with the plan which was in evidence, the court cannot see that the carriage had not got so far off the road and over the bank as to be beyond the control of the horse before she and Hartwell lost control of him, and that a proper railing would not have prevented the accident.

The decision of the case depends upon a considerable number of circumstances, and the inferences of fact which are to be drawn from them. Exceptions overruled.