By the Court. Woodruff, J. The charge of the judge ■ in this case appears to me so palpably erroneous, and so unjust in its influence, or at least in its tendency, that—although I think the evidence warranted a recovery under a correct instruction from the court—the judgment ought not to be sustained. The charge was, in effect, that if the plaintiff did all he could to avoid the accident, he was entitled to recover at all events. That although the defendants did every thing which it was within human ability and skill to do, they are nevertheless liable.

That is to say, if neither party was in fault, the plaintiff is entitled to recover. Even if the defendants “ had not sufficient power to stopffi they were bound to stop at their peril. The question whether the defendants were guilty of negligence was as material as whether the plaintiff was, and that should have been made the primary question, instead of reversing the order and telling the jury that if the plaintiff was not guilty of negligence; they must assume that the defendants were.

Suppose the case were reversed and the collision had resulted in an injury to the defendants’ car and horses, and they had sued. Would it have been proper to charge the jury, that if the defendants did their best to avoid the collision, the plaintiff was bound to get his cart off the track at his peril ? It is true that there was no exception in form taken to this part of the charge, but it seems to me we ought not to suffer such an instruction to pass, if there are any grounds upon which we can reverse consistently with established precedent.

And this I think is found in the refusal of the judge to charge the jury that the defendants had a right to travel on the track on the left hand side of the road. By the justice’s amended return, it appears that he did, when reguested, refuse so to charge, and that the defendants’ counsel excepted. The jury were, therefore, left to infer from such refusal, that the running on the left hand track was itself a fault, on til© part or til© (Iuiym3.<mt07 .cm<3. mnBjoottod. ilioin. tv xlauiíigGB» I think the judgment must be reversed. Judgment reversed.