The precise question was presented, and decided in conformity with the earlier case, in 1892. Chadbourne v. Exeter, 67 N.H. 190. The brevity of the opinion indicates that the question was not then considered to be a doubtful one. Under the statute as it stood prior to 1893 the town might have been liable in this case, and the question presented is whether the changes then made in the statute so far limit the liability as to exclude this deficiency in the way. If Laws 1893, chapter 59, section 1, had merely limited the existing liability to injuries happening upon bridges etc., the plaintiff would prevail here, because of the construction which had theretofore been given to the language of the statute.

The mere fact that she voluntarily encountered a known danger does not establish the proposition that she was guilty of contributory negligence. Kambour v. Railroad, 77 N.H. 33; Hubbard v. Concord, 35 N.H. 52; Sleeper v. Sandown, 52 N.H. 244; Chadbourne v. Exeter, 67 N.H. 190. That she did not specially notice the culvert or the embankment was probably due to her efforts to avoid slipping; even if she had said that she did in fact notice those objects, it is not apparent how that act would have tended to prevent her injury. Whether she ought to have examined the declivity over which she fell before attempting to pass by it, is clearly a question for the jury. It may be found upon the evidence disclosed, and other evidence that may be presented at the trial, that she was proceeding along the road with due care. It is certain that it does not conclusively appear that she will be unable to prove that necessary fact. Hence the defendant's contention upon this point is unavailing.

" The questions of law or fact which the plaintiff desires to litigate are not ordinarily determined upon the preliminary petition. It is sufficient if it appears that there are important questions which, through accident, mistake, or misfortune, the plaintiff will be unable to try unless the petition is granted. Drew v. Derry, ante, p. 113; Hendry v. North Hampton, ante, p. 26; Welsh v. Franklin, 70 N.H. 491; Chadbourne v. Exeter, 67 N.H. 190; Gitchell v. Andover, 59 N.H. 363. If, however, it conclusively appears from the admitted facts or the allegations of the petition that the plaintiff has and can have no valid claim against the defendants, it is apparent that there are no questions to be tried.

The reserved case does not show that evidence was not presented upon which this fact might not be found in favor of the plaintiff. Chadbourne v. Exeter, 67 N.H. 190; Gitchell v. Andover, 59 N.H. 363; Bolles v. Dalton, 59 N.H. 479. If it is so found, the plaintiff is entitled to judgment. The fact is not found; but the petition was dismissed because, as the case is understood, the court determined the question of the cause of the plaintiff's injury, as matter of law, adversely to the plaintiff, and for that reason only dismissed the petition.

Whether the point at which the plaintiff was injured was a bridge, a culvert, or a raised sidewalk, merely, need not be definitely determined at the present time. "It was not the design of the statute to subject the parties to the expense of two trials. . . . If it appear that important questions of fact or law are involved which the petitioner intended and was reasonably entitled to litigate, and that he has been prevented through accident, mistake, or misfortune and not from his own fault, the petition is granted," if a further hearing would be equitable. Gitchell v. Andover, 59 N.H. 363, 364; Chadbourne v. Exeter, 67 N.H. 190. It has been found as a fact that the plaintiff ought to be permitted to litigate the question in controversy between herself and the defendants. Page v. Campton, 63 N.H. 197. The controversy between the parties may be whether the place of injury was a culvert or bridge, within the meaning of the statute.