FROM COOS CIRCUIT COURT. The only question to be decided in this case is, whether the nonsuit was rightly ordered, — in other words, whether there was anything for the jury to consider.
The first count alleges generally that the highway was defective and insufficient, c. The second count alleges that the culvert was insufficient, and in each count it is alleged that the accident happened by reason of such insufficiency.
It is true that the culvert was not within the travelled part of the highway proper, but it was a part of a turn-out from the highway connecting with a pass from the highway to the depot. This turn-out had all the appearance of a regular highway, and a great amount of travel is said to have passed over it.
I think, as matter of law, although I have not noticed any case *Page 91 exactly in point, that if the town permitted such a turn-out to exist from the highway to the way over the depot grounds, it was bound to keep in repair so much of such turn-out as was within the limits of the highway as laid out. Coggswell v. Lexington, 4 Cush. 307, seems to be, in principle, an authority for this view.
Whether the town would have a right to prevent travel from its highway to the depot ground, or from the depot ground to the highway, it is not now necessary to inquire. The town did permit it. Travellers, finding, the road thus apparently travelled, would have a right to travel there, and to rely upon finding the road in suitable condition.
This being so, the questions whether the culvert was wide enough or otherwise sufficient, whether the accident would have been avoided had the culvert been sufficient to permit the horse to turn to the right and leave behind her the object of her terror, whether the accident was so proximately occasioned by the insufficient culvert as that the town would be liable, and whether the driver was in the use of sufficient caution, were all emphatically questions for the jury. The distinction between remote and proximate causes has been much discussed in comparatively recent American cases. The rapidity with which fires from locomotives have spread, and the enormous extent of the injury, have brought this matter much into notice. In 3 Parsons on Contracts 178 (6th ed.), the rule is stated as follows: "We have been disposed to think that there is a principle, derivable on the one hand from the general reason and justice of the question, and on the other hand applicable as a test in many cases, and perhaps useful, if not decisive, in all. It is, that every defendant shall be held liable for all of those consequences which might have been foreseen and expected as the result of his conduct, but not for those which he could not have foreseen, and was therefore under no moral obligation to take into his consideration." This rule is substantially adopted in A. T. S. F. R. R. Co. v. Stanford, 12 Kansas 354, and Fent v. T. P. W. Railway Co.,59 Ill. 349; and it appears to me that the same is the rule adopted in the English cases. In 6 Am. R. 599, the learned editor, in a note to the case of Flynn v. S. F. S. J. R. R. Co., says, — "A resume of the discussion, and an observation of the course of decisions, both in England and the United states, will reveal the fact that not until recently has this distinction been advanced in the courts. Ill fact, the decisions of England do not furnish a single instance of the distinction." So far as I have noticed, the remark is just.
If the rule, as suggested by Professor Parsons, is correct, as I believe it to be, it will follow that the question, whether the damage sustained be the natural and probable consequence of the wrong complained of, will be for the jury. That there was on evidence tending to show that these questions ought to be answered in favor of the plaintiff, the court cannot say as matter of law. As there was evidence for the jury to consider, the nonsuit was improperly ordered.
Judgment must be rendered for the plaintiff according to the provisions in the case. *Page 92
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