*604The opinion of the court was delivered, at the circuit session in September, by

Redfield, Ch. J.

I. There is certainly a very important distinction between the liability of towns for damages accruing to travellers, by reason of defects in the highways within their limits, and that of turnpike and other corporations, who derive a revenue from the use of their roads by travellers. In the former case, the support of the road is a mere burden upon the towns, without any corresponding equivalent. The traveller pays no consideration for the use of the road. It is no advantage to the town to have the roads used by travellers. So that in this case there is, properly speaking, no privity, by way of a quasi contract between the traveller and th'e town. In such case it has been, with great propriety, held that the duty of the town to indemnify travellers for losses, in consequence of defects in the highways, cannot be extended beyond the positive enactments of the statute. The duty of towns is, in such case, altogether statutory, and of a public character, and in the absence of special provision, there exists only the common remedy for similar neglects, by indictment.

But in the case of corporations created for the purpose of maintaining a road for their own advantage, to be compensated by means of tolls collectable of all who use the road, the case is very different. In such case, the liability to pay tolls is a consideration for the undertaking on the part of the corporation to furnish a safe road for the use of the traveller, as an equivalent. It is the same, in principle, as any other case where service is performed for pay. There is an implied undertaking, resulting from the general rules of law applicable to similar subjects, that the person undertaking such service, whether it be a natural or artificial person, shall perform it faithfully, and in case of failure shall respond to the party thus paying his money, by way of damages, as an equivalent. The cases cited in argument by counsel confirm this view. Indeed the liability of such corporations, as the defendants, is more analogous to that of a railroad, who undertake to carry for fare, which is but another name for toll, than to the liability of towns. And it was never doubted, that railroads are liable for all damage accruing to travellers, by reason of defects in their road, or in its management. We do not understand the counsel to question the • "’-’adness of this distinction.

*605II. But it is claimed that the plaintiff’s remedy is against the town of Stowe. But, it seems to us, there is no just analogy between the cases which have been decided by this court in regard to the liability of towns for not keeping their |highways in safe condition when interfered with by railroads, and the present case, where the highway is superseded by a plank road, which is intended to take the place of the highway. In such a case it would seem absurd to require a town to see to it, that the plank road was kept in repair, when they could not, if they would, maintain their highway after the opening of the plank road, as that would be an infringment of the rights granted to the plank road of taking tolls. And if it could be maintained, winch we think it could not, that the town of Stowe were liable for giving up their highway before the defendants had built a proper plank road, it would not excuse defendants, after opening their road and taking tolls. It seems to us, therefore, that the defendants are liable so far as any question is made in the exceptions; and the judgment is reversed and the case remanded.