Weston J. It is made by law the duty of towns to keep all highways, townways, causeways and bridges, within their bounds in repair; so as to be safe and convenient for travellers, with their horses, teams, carts and carriages, at all seasons of the year. Whoever is injured in his property, by a failure of this duty, on the part of any town, if they had reasonable notice of the defect, is entitled to recover damages against such town. This liability has been qualified, by holding it necessary that the party injured should have been in the exercise of ordinary care. Smith v. Smith, 2 Pick. 621. Thompson v.

Bridgewater, 7 Pick. 188. It results therefore that in these cases, besides the questions whether the bridge or road was defective, and whether the town had reasonable notice of it, there may arise another, whether the party injured was in the use of ordinary care. These are all questions of fact, to be submitted to, and decided by the jury. The Judge below was requested, by the counsel for the defendants, to instruct the jury, that it was for them to decide, whether ordinary care had been used by the plaintiffs.

This he declined, upon the ground, as it would seem, that in his opinion, there was no pretence for charging the plaintiffs with the want of care. If a party requests a Judge to instruct the jury upon a point, which in a proper case would be altogether correct, if the cause on trial does not call for it, he may well decline the request. It would serve to mislead the jury, to call their attention to positions of law, not appertaining to the cause, or raised by the facts.

It is no doubt true, that a bridge ought to be constructed sufficiently strong to sustain the weight of from twenty to forty cattle, passing in a drove ; and if there was no apparent defect, no more care might be required in driving that number there, than in passing upon any other part of the highway. It would be otherwise, if the party had been put upon his guard, by an apparent defect. In that case, ordinary care and prudence might not justify the passage of the whole at once. For anything, which appears, this might have been the state of the evidence. A defect existed, and it may have been apparent.

The instruction requested was in accordance with the law, and might have been, upon the facts, decisive of the cause. In our opinion, it ought not to haye been withheld. The exceptions are accordingly sustained. New trial granted.