gence that the plaintiff drove over a bridge on a slow trot of about four and one half miles an hour, when it was so dark that he could not see two feet ahead;' or that the plaintiff rode a safe horse, on a dark night, bareback and without martingales, at a speed of five or six miles per hour, over a familiar road; nor that a skillful driver drove a safe horse, with a tight rein, at night, at his usual speed of ten miles an hour, over a wide and level road, with which he was familiar, and over which he had passed in safety an hour previously without perceiving any obstruction; nor hallooing on the highway to a driver that a team wants to pass him, although the sound frightens the driver's horse and brings about a collision; nor is it contributory negligence to allow a woman to drive, or a boy of twelve.

§ 1172. At Night.-What degree of care is essential on the part of a person walking or riding upon the highway in the night-time is a question for the jury in most cases, to be judged of by a consideration of the particular circumstances. Naturally, greater care and watchfulness are required of a traveler at night than by day; but the traveler has the same right to assume that there is no defect or impediment in the street, not protected either by a light or a railing. It has been held not negligence per se to walk on a sidewalk or over a bridge on a dark night without a light; 10 or to drive on the road on a dark night, allowing the horse to take his own course.1

11

R. R. Co., 34 Wis. 435; Stevens v. Boxford, 10 Allen, 25; 87 Am. Dec. 616. 8 Stier v. Oskaloosa, 41 Iowa, 353.

Cases in first note in this section, and Bateman v. Ruth, 3 Daly, 378; Reed v. Deerfield, 8 Allen, 522.

19 Maloy v. R. R. Co., 58 Barb. 182; Swift v. Newbury, 36 Vt. 355; Osage City v. Brown, 27 Kan. 74; Altoona v. Lotz, 114 Pa. St. 238; 60 Am. Rep. 346; Glidden v. Reading, 38 Vt. 52; 88 Am. Dec. 639.

11 Rector v. Pierce, 3 Thomp. & C. 415; Wright v. Saunders, 58 Barb. 214; 3 Keyes, 323.

ILLUSTRATIONS. - Plaintiff collided with a wagon left standing by the defendant in a highway. Plaintiff was accustomed to drive horses, and the accident happened while he was driving a gentle horse, on a dark night, on a slow trot, looking out on one side of the horse for a blanket which he had lost shortly before from his wagon, while his companion was looking for the blanket on the other side, and neither of them saw the defendant's wagon before the collision, though the plaintiff had seen the obstruction there on the day of the accident. He had a right to suppose that the unlawful obstruction would have been removed before nightfall. Held, not guilty of contributory negligence: Fox v. Sackett, 10 Allen, 535; 87 Am. Dec. 682.

§ 1173. Skittish or Scared Horse-Defective Vehicle or Harness. It is held by some courts that no recovery can be had where the injury is the joint result of a defect in the highway and a fright on the part of the horse, causing the driver to lose control of him,' except where the fright of the horse is the result of the defect in the highway. But in other courts the traveler is allowed to recover for the result of a defect in the highway, and an accidental fright of the horse. The plaintiff may be guilty of contributory negligence in riding in an obviously defective wagon, or with imperfect harness, or a horse badly shod, or a wagon not supplied with a brake.5 In some states it is held that if a defect in the plaintiff's carriage, though it were unknown to him, contribute jointly with a defect in the highway to produce an injury to the plaintiff, there can be no recovery, on the principle that "the plaintiff must show that the accident occurred wholly by the defect of the road, and without any fault on his part." In others the rule is, that if the de

1 Davis v. Dudley, 4 Allen, 558; Murdock v. Warwick, 4 Gray, 178; Titus v. Northbridge, 97 Mass. 258; 93 Am. Dec. 91; Fogg v. Nahant, 98 Mass. 578; Moulton v. Sanford, 51 Me. 127; Perkins v. Fayette, 68 Me. 152; Jackson v. Belleview, 30 Wis 250.

Kelley v. Fond du Lac, 31 Wis. 179; Montgomery v. Scott, 34 Wis. 338.

3 Lower Macungie v. Merkhoffer, 71 Pa. St. 276; Baldwin v. Turnpike

Co., 40 Conn. 238; Brookville Turnpike Co. v. Pumphrey, 59 Ind. 78; Winship v. Enfield, 42 N. H. 197; Hey v. Philadelphia, 81 Pa. St. 44; 22 Am. Rep. 733; Hunt v. Pownall, 9 Vt. 411.

Hammond v. Mukwa, 40 Wis. 35. 5 Allen v. Hancock, 16 Vt. 230. See Lindsey v. Danville, 45 Vt. 72.

62 Thompson on Negligence, 1208; Farrar v. Greene, 32 Me. 574; Moore v. Abbott, 32 Me. 46.

fect is unknown to the plaintiff, in the exercise of reasonable care in the selection of his vehicle and harness, it will not avail as a defense, where the injury results from this defect and the condition of the highway jointly.1

ILLUSTRATIONS.-The plaintiff was injured by falling into an open cellar, the wall of which extended into the street. The plaintiff, driving one horse in a chaise, stopped near the cellar, and turned the animal to one side in order to admit some one into the carriage. He then attempted to turn the horse sufficiently to bring him into the road; but the horse came back too far, and began to back. He then slapped the animal with the reins to start him forward, and the horse stopped; but the rear wheels were then passing over the cellar-wall, and the plaintiff, in attempting to jump out, was caught by the fender, and, together with horse and vehicle, fell into the cellar. Held, insufficient to establish the defense of a want of the exercise of ordinary care on his part: Nichols v. Brunswick, 3 Cliff. 81. A horse was frightened by a defect in the highway, and the driver, to stop his running, turned him towards a bank, where the horse struck a post outside the traveled part of the highway. Held, that the plaintiff was not entitled to recover, although he had used due and reasonable care in the selection and management of his horse: Brooks v. Acton, 117 Mass. 204. Plaintiff's horses, while he was driving, took fright from an attack by defendant's dog, and plaintiff brought suit for injuries sustained from falling from the wagon. Held, that neither the fact that he rose to his feet when the horses started, nor that the seat was not fastened to the wagon, affected his right of recovery: Meracle v. Down, 64 Wis. 323. Defendant's cars had run off the track at a highway crossing. The plaintiff undertaking to drive a horse over the crossing, the horse showed fright at the upturned cars, but the plaintiff persisted, the horse ran, and the plaintiff was injured. There was another road near, which the plaintiff might have taken. Held, contributory negligence: Pittsburg etc. R. R. Co. v. Taylor, 104 Pa. St. 306; 49 Am. Rep. 580. A horse is frightened at the noise of steam escaping from an engine, and the owner of the horse, instead of leading the horse away, leads him toward the engine, and he becomes unmanageable, and rears and falls backward, and breaks his neck. Held, that the owner is guilty of contributory negligence: Louisville and Nashville R. R. Co. v. Schmidt, 81 Ind. 264.

1 Palmer v. Andover, 2 Cush. 600; Tuttle v. Farmington, 58 N. H. 63; Dreher v. Fitchburg, 22 Wis. 675; Fletcher v. Barnet, 43 Vt. 192; Clark

v. Barrington, 41 N. H. 44; Hodge v. Bennington, 43 Vt. 450; Tucker v. Henniker, 41 N. H. 317.

§ 1174. When Plaintiff has Knowledge of Defect.Knowledge of a defect in a highway is not conclusive evidence of negligence in attempting to pass it.1 A person is not obliged to keep away from a street because he knows beforehand or sees that there are defects in it.2 He may attempt to pass over it, provided he uses due care under the circumstances.3 But he is guilty of contributory negligence if knowing of and seeing the defect he recklessly rushes into it, and he must take the consequences. If one is possessed of positive knowledge that the defect is dangerous, and, in addition to this circumstance, that there is another and safer way, no recovery can be had for an injury to person or property from an attempt to pursue the dangerous course. But it is not

1 Smith v. St. Joseph, 45 Mo. 449; Kenworthy v. Ironton, 41 Wis. 647; Whitaker v. Boylston, 97 Mass. 273; Lyman v. Amherst, 107 Mass. 339; Reed v. Northfield, 13 Pick. 94; 23 Am. Dec. 663; Weed v. Ballston Spa, 76 N. Y. 329; Wilson v. Road Co., 93 Ind. 287; Smith v. Clark, 3 Lans. 208; Ross v. Davenport, 66 Iowa, 548; Fulliam v. Muscatine, 70 Iowa, 436; Henry Co. Tp. Co. v. Jackson, 86 Ind. 111; 44 Am. Rep. 274; Bassett v. Fish, 75 N. Y. 303; Mayor v. Holmes, 39 Md.

241.

2 Rice v. Des Moines, 40 Iowa, 638; Reed v. Northfield, 13 Pick. 94; 23 Am. Dec. 662. Walking on a street known to be partly obstructed by fallen telephone-wires does not necessarily show contributory negligence: Nichols v. Minneapolis, 33 Minn. 430; 53 Am. Rep. 56.

Kelley v. Fond du Lac, 31 Wis. 179; Smith v. Lowell, 6 Allen, 39; Gilman v. Deerfield, 15 Gray, 577; Whitford v. Southbridge, 119 Mass. 564; Hinckley v. Barnstable, 109 Mass. 126; Clayards v. Dethick, 12 Q. B. 439; Baltimore v. Holmes, 39 Md. 243; Crumpton v. Solon, 11 Me. 335; Smith v. Smith, 2 Pick. 621; Thompson v. Bridgewater, 7 Pick. 188; Rindge v. Coleraine, 11 Gray, 157; Jacobs v. Bangor, 16 Me. 187; 33 Am. Dec. 652; Garmon v. Bangor, 38 Me. 443; Noyes v.

5

Morristown, 1 Vt. 353; Folsom v. Underhill, 36 Vt. 580; Koch v. Edgewater, 14 Hun, 544; Nicks v. Marshall, 24 Wis. 139; Earleville v. Carter, 2 Bradw. 34; Craig v. Sedalia, 63 Mo. 417; Moore v. Shreveport, 3 La. Ann. 645; Thomas v. Western Union Tel. Co., 100 Mass. 156. When one drives from the country into a city, it is not contributory negligence for him to drive through a public street, and through what appears to be a mere pool of water standing there, there being, in fact, a concealed hole two and one half feet deep under the pool: Hedges v. Kansas, 18 Mo. App. 62.

Butterfield v. Forrester, 11 East, 60; Griffin v. New York, 9 N. Y. 456; 61 Am. Dec. 700; Cornelius v. Appleton, 22 Wis. 635; Goldstein v. R. R. Co., 46 Wis. 404; Town of Gosport v. Evans, 112 Ind. 133; 2 Am. St. Rep. 164.

5 Centralia v. Krouse, 64 Ill. 19; Lovenguth v. Bloomington, 71 Ill. 238; Wilson v. Charlestown, 8 Allen, 137; 85 Am. Dec. 693; Durkin v. Troy, 61 Barb. 437; Schaefler v. Sandusky, 33 Ohio St. 246; Wood v. Andes, 11 Hun, 543; Forks Township v. King, 84 Pa. St. 230; Parkhill v. Brighton, 61 Iowa, 103; McGinty v. Keokuk, 66 Iowa, 725; Hartman v. Muscatine, 70 Iowa, 511. Contra, Whitford v. Southbridge, 119 Mass. 564.

necessarily negligent to try to drive on a defective road, although the driver knows the defect, if he believes it reasonably safe, and there is no other safe road. One may use an unsafe sidewalk, knowing it to be unsafe, without necessarily being guilty of contributory negligence.2

A person who voluntarily attempts to pass over a sidewalk of a city which he knows to be dangerous, by reason of ice upon it or other defect in it, when he might easily avoid it, is guilty of contributory negligence. The plaintiff's general acquaintance with the obstruction or defect in the highway will not prevent a recovery for injuries received on this account, if under the circumstances he might still, in the exercise of ordinary prudence, be unaware of his proximity to it; as where the female plaintiff knew of the defect, but, being frightened at the attempt of a strange man to seize her, ran over the sidewalk in the dark, giving no thought to the sidewalk or her manner of going over it; and where a woman, under very similar circumstances, ran to her home on hearing that her children were in danger. But it has been held that to excuse the failure to observe a defect of which the plaintiff had knowledge, his attention must be distracted by some present necessity, and it will not be a sufficient justification that at the time of the injury the plaintiff was engaged in observing a passing buggy, to satisfy his curiosity in regard to the style of harness used. upon the team. If the highway is obstructed by snow, and the traveler knows it to be dangerous or impassable,

1 Town of Albion v. Hetrick, 90 Ind. 545; 46 Am. Rep. 230.

2 Bullock v. New York, 99 N. Y. 654; Emporia v. Schmidling, 33 Kan. 485; Gilbert v. Boston, 139 Mass. 313; Evans v. Utica, 69 N. Y. 166; 25 Am. Rep. 165.

Schaeffer v. Sandusky, 33 Ohio St. 246; Bloomington v. Read, 2 Ill. App. 542; Macomb v. Smithers, 6 Ill. App. 470; Indianapolis v. Cook, 99 Ind. 10;