The governing legal principles applicable to this case are the same as those which were applied in Call v. Street Railway, 69 N.H. 562. In that case (which was "for injuries caused by the plaintiff's fall into a ditch by the side of a highway in Kittery, Maine, in consequence of (1) the defendants' act in removing a fence and thereby rendering the highway unsafe for travelers, and (2) the defendants' negligence in inviting the plaintiff to board one of their cars as a passenger at an unsuitable place") it was held, in respect of the first ground of complaint, that "the defendants would be liable at common law to any one who, in the exercise of due care, was injured by an obstruction defect in a highway caused by their negligence"; that, "in addition to this, the defendants' charter in express terms made them liable for such negligence"; and that, "in Maine, as in New Hampshire, the question of contributory negligence is for the jury when there is evidence that warrants the submission of that question to them."

In the present case it is not, and properly cannot be, controverted that the highway upon which the plaintiff received his injury was both defective and dangerous, as the result of the defendants' negligence in the construction of their railway. The only contention open to them to which reference need be made, then, is that there was no evidence of due care on the part of the plaintiff which warranted the submission of the case to the jury.

We cannot but think there was such evidence. True, it was not strong enough as necessarily to lead to the conclusion arrived at by the jury; but it is not necessary that it should have been. It is enough that there was evidence upon the subject which had some legitimate tendency to support the issue; and that there was, the case amply discloses.

Exceptions overruled.

WALLACE, J., did not sit: the others concurred. *Page 413