Mr. Justice Sterrett,
delivered the opinion of the court, November 5th 1877.
In that portion of the charge covered by the eleventh and twelfth assignments of error, the jury were properly instructed that the defendant might place building material on a portion of the highway, and permit the same to remain there for a reasonable length of time, for the purpose of erecting his barn on the line of the road, without, on that account alone, incurring liability for injuries sustained by persons passing along the road; provided, ample room was left for the free passage of vehicles and animals; but he would be liable for injuries occasioned by an unreasonable or negligent use of the highway.
The instructions given by the learned judge on this subject appear to be sustained by The People v. Cunningham, 1 Denio 524; Commonwealth v. Passmore, 1 S. & R. 217, and Palmer v. Silverthorn, 8 Casey 65. Ln the last case, Mr. Justice Thompson said: “ The necessity of the case was probably the foundation of the rule, and is the foundation of most laws and municipal regulations; but the practice has become a custom of such long standing, that it is regarded as laur. * * * It is a right to be exercised under responsibility for all injury arising from an unreasonable or negligent use of it.” The want of ample room to pass along the road at the point -where the building material was deposited, was not the main ground of complaint relied on by the plaintiffs. It was alleged that Mrs. Mallory’s horse was suddenly frightened by a large stone or boulder, placed on or near the roadway, and became unmanageable ; that she was thrown from the buggy, and thus received the injuries complained of. It was claimed that the stone was an object calculated to frighten an ordinarily quiet and well-trained horse, and that the defendant was chargeable with negligence in leaving it on the highway. This presented a question of fact, which was properly sub mitted to the jury, with the instruction that the plaintiffs could not recover, unless they found “ from the evidence that a stone or roclc, such as was placed in or near the road by the defendant, was, in and of itself, an object calculated to frighten an ordinarily quiet and well-broken horse.” If this had been the only question of fact to be found by the jury, the verdict would have been conclusive ■ of the plaintiffs’ right to recover; but the question of contributory negligence, raised by the defendant’s fourth point, was also submitted. Both of these questions may have been found in favor of the defendant, but we have no means of determining whether they were or not. The verdict, for aught we know, may have been based on the finding of contributory negligence alone; and if so, the plaintiffs were prejudiced by the affirmance of defendants’ ninth point, viz.: “ That if the plaintiffs have not shown affirmatively that their own negligence did not contribute, in any degree, to the injury, they cannot recover.” This instruction cast upon the plaintiffs the onus of disproving negligence, and was clearly wrong. Negligence of a plaintiff contributing to the injury complained of, is matter of defence, and, ordinarily, the burthen of proving it is on the defendant. There may be cases in which it would be incumbent on the plaintiff to prove that he exercised ordinary care, but this is not one of them.
There appears to be nothing in any of the remaining assignments of error that requires further notice.
Judgment reversed, and a venire facias de novo awarded.