The opinion of the court was delivered by
Wheeler, J.
In this case the jury, under a proper charge in that respect, have failed to find that the loose stone that caused the injury to the plaintiff’s horse, constituted an insufficiency in the highway in fact, according to the ordinary requirements. But it is insisted for the plaintiff that the statute in relation to the removal of such stones from highways, makes the presence of them there an insufficiency in law, for which the town is liable if they in fact occasion damage. It is not necessary, in order to decide upon the soundness of this position, to determine what the effect would be if, as the plaintiff’s counsel claim, the statute absolutely required that roads should be kept clear of loose stones, for the statute does not so require. It does require them to be cleared as often as once a month, but not as much oftener as is *506necessary to keep them clear. The law may be' fully complied with and still there be at times loose stones in the highways. When that is the case, the stones are no more unlawfully there .than anything else would be that does not cause an insufficiency in fact. What does cause an insufficiency in fact is always á question of fact to be determined by the jury under proper instructions from the court. This was very distinctly held in Sessions v. Newport, 23 Vt. 9, and has been so held many times since, and once upon this circuit. It may be that if the law should absolutely require certain things to be done about the roads, or that they should be kept in certain specified conditions, travellers would have the right to rely upon the things being done or the conditions maintained ; and if they should do so and be injured by the want of either without their fault, the town would be liable, although the want might not be an insufficiency according to ordinary apprehension. But herethe law only requires absolutely that they shall be cleared as often as once a month; and as that appears to have been done, there was nothing left that the law required more than that the town should keep the road in good and sufficient repair. The plaintiff could not recover .on account of any failure of the defendant to comply with that requirement, and consequently was not entitled to recover at all.
Judgment affirmed.