| Vt. | Oct 15, 1883
The opinion of the court was delivered by
The only question argued upon the report of the referee is whether the plaintiff’s right to recover is barred by his contributory negligence.
It appears that from the bridge crossing the Winooski river about a mile east of Montpelier, there are two public', highways open for travel; one leading east on the north side of the river between the railroad on the north and the river' on the south, and the other crossing over the bridge and leading east on the south side of the river and both coming together at a point further east, near the Coffee house. The plaintiff ivas familiar with both roads, and knew by taking the first he was liable to meet a passing train upon the railroad. He elected to take this one and met such train, by which his horse was frightened, and
Did his knowledge of the danger attending travel upon this, road by reason of the propinquity of the railroad, constitute contributory negligence ?
The referee says: “ If there had been a railing between the edge of the bank and the travelled track, the plaintiff’s wagon could not have got out of the road so far and in the way it did get out, and this accident would not have happened.”
The town then was guilty of negligence in not providing a railing to protect travel upon the road; and in this case, obviously, such negligence was the proximate cause of the plaintiff’s injury. Towns are bound to keep their highways sufficient, having regard to such accidents as are liable to occur in their proper use. In a place exposed like this,,accidents of this kind are manifestly liable to occur.
The plaintiff had knowledge that his horse would be exposed to the danger of fright if he took the north road. He did not know however, that the road was insufficiently protected against the consequences of such fright. The north road was open and used by the public without warning, save such as travellers had who knew the special danger.
The road being open, the public was thereby invited to use it. The traveller in such case has the right to presume that the town has discharged its statutory duty to keep such road sufficient ; and this presumption is commensurate with the duty imposed. H travel upon the road is exposed to exceptional danger, it is the duty of the town to forefend against such exceptional danger; and the traveller may presume such enlarged duty has been performed.
Having no knowledge of the absence of the railing, the plaintiff’s knowledge does not reach the proximate cause of the injury, and so did not contribute to it.
The defendant is answerable in law only for negligence proximate in causal relation to the damage. The plaintiff is barre of remedy by negligence contributing to the damage. But
Knowledge of existing danger is not per se negligence. It is a fact to be weighed by the trier as bearing upon tbe. question of negligence. Clarke v. Holmes, 7 H. & N., 937; Senior v. Ward, 1 E. & E., 385; Hare v. Flack, 90 Ind. 295.
Tried by these tests it is apparent that the plaintiff was not guilty of contributory negligence.
The pro forma judgment of the County Court is reversed and judgment rendered on the report for the plaintiff.