The opinion of the court was delivered by

I. It is objected, that there is a variance between the declaration and the proof, in the present case. That will depend upon the construction we give the evidence, to some extent, at least. To us, it seems difficult to find any satisfactory evidence of the discontinuance of the original highway. There is *68nothing to show that the railroad company had pursued the charter-provisions, to substitute the road built by them for the old road. And till that is done, the town certainly are not obliged to recognize the change. In England it has been held, that a railway may be indicted for a nuisance, for obstructing an old highway, till they have, in a perfect and legal manner, made the statute substitute, and that this is the proper mode of compelling them to do their duty in the premises. Whether we should so hold here, or not, it is certain they have no right to obstruct the ancient highway, but in the mode, and upon the conditions, prescribed by the legislative power of the state. This they are not shown to have done in the present case. The highway is not, then, discontinued in that mode. And there is no such discontinuance, in fact, as will be effectual. The jn-oceedings of the railroad, so far as appears in the case, then, are mere wrongs. And there is no such acquiescence of the public in the case as will be of any force, as in the case of Tinker v. Russell, 14 Pick. 279, cited in argument, and, clearly, there was no abandonment of the ancient highway by the proper authorities, or by long non-user. The town and the public, then, have the right to regard it, as still in legal existence, notwithstanding its treatment by the railroad company, and this obviates all variance.

And then, the first count in the declaration is not necessarily confined to the defects in the old road. The terms used are general, “greatly insufficient and out of repair, and was then and there full of deep cuts”, &c. describing such road by limits beyond the deviation, and this is applied to the whole road, and if the new portion had legally become a portion of the highway, and for many purposes it certainly had, as was held in Batty v. Duxbury, and in other cases, and if the real defect was the want of proper obstructions, at the point of departure from the ancient highway, still these general allegations of want of repair are not necessarily confined to the specific defects enumerated, as they are in the second count, where the form of declaring is different. And it is obvious that towns may be required to fence travellers out of the old highway, when they have broken it up recently, and provided a new one, without involving the absurdity of requiring them to fence travellers into the road, in all cases. So that, upon either ground, there is no fatal variance.

*69II. In regard to the liability of the town, this case is certainly much stronger than that of Willard v. Newbury 22 Vt. 458, although, in its facts, in many respects, very similar to that case. But there, the railroad and the town had agreed upon a temporary substitute for the old highway, and that was consequently, for the time, discontinued. There, too, the highway was,' at the time, in the legal custody and control of the railroad company, and sufficient- obstructions to guide travellers out of the old highway, had been put up and maintained, till about the time of the injury, and were then left down by the railroad, after the path was mainly filled with large blocks of granite. Still the town was held liable, because the primary obligation to keep the roads in safe condition, rested upon towns, and if they trusted to the railroad company, they thereby made them their agents for that purpose, and must be responsible to travellers for their omission to keep up the proper fences, to exclude travellers from the old highway. That case seems fully to control the present, in regard to the neglect of the town.

III. In regard to the burden of proof being upon the plaintiff, to show that he was, at the time, in the exorcise of proper care, it is undoubtedly true, that the plaintiff is bound to make out a prima facie case upon this point, as well as others. But this is rather a negative than an affirmative proposition. The requisite is rather that he was not guilty of negligence, than that he should prove any positive diligence. And, as in other negative propositions, which it is often incumbent upon a party to establish, as where suits or indictments are brought for omissions of duty, after such negative evidence of the alleged fact, as may be presumed to be in the power of the party, is shown, the burden of proof is changed upon the other side. That appears to have been the case here. The plaintiff’s case showed an acknowledged case of no negligence on his part, except in regard to darkness. There seems to have been no question in regard to plaintiff’s want of care, except in regard to the darkness of the night. And unless it can be assumed, as a general proposition, that, ordinarily, one is not allowed to travel the highway with a team in the night time, and so it is incumbent upon one who does thus travel, and seeks redress for injury of towns, to show affirmatively that the night was light enough to render it safe, then it is difficult to throw the onus of proof upon the plaintiff here.

*70And we think it must be regarded as the general right of every one to travel in this mode, in the night time; and it was for the defendant, if there is no other testimony to show want of ordinary care, to prove that the night was so dark as to render it unsafe to travel.

And the proof of darkness, in the present case, seems to us not to have called upon the court to rale, as matter of law, that it was unsafe to travel. Questions of negligence, where the law has settled no rule of diligence, can never be determined as matter of law — except where the testimony is all one way. If there is no testimony tending to show negligence, then it may be determined by the court that there was no negligence. And that seems to us more the character of the proof here, than what was claimed by defendant. Or if the testimony is uncontradicted, and makes a clear case of negligence, it becomes matter of law only. But it must certainly be darker than it was shown to be that night, to render it presumptuous for one to travel in the cautious mode the plaintiff seems to have been doing.

Judgment affirmed.