Maccarty v. Inhabitants of Brookline

Colt, J. The defect complained of was caused by a large stone suffered to remain upon the surface of the travelled part of the highway, against which the plaintiff’s wagon struck. There was no attempt to charge the defendants on the ground that there was reasonable notice of its existence, but the plaintiff relied on the fact that the same obstruction had been there for twenty-four hours. There was evidence tending to show that the stone had been changed in position within that time, and by reason of its size, that it must have been moved by human agency, and the exceptions taken at the trial have reference to the question whether such an obstruction can be considered a continuous defect, if its position in the highway is changed. The jury must have found, under the instructions given, that it was a defect within the travelled part of the highway, and had existed as such for twenty-four hours before the accident. That if during that time it had been moved by the agency of some other person, yet its position had not been so materially changed as that it ceased to be the same defect. These propositions were enough to support the plaintiff’s case, and the findings were warranted by the evidence reported. The defendants asked the court to rule, that the town would not be liable “unless the stone had remained across the wheel-rut for twenty-four hours, although it had, for some days before it was moved, remained within the limits of the travelled part of the way, but so far from the ordinary ruts of travel as not to be an obstruction to a carriage passing in such ruts.” The instruction requested, so far as it differs from those given, is objectionable. It could not be properly ruled, as a matter of law, that a stone in the position described would not be the same defect unless it had remained during the whole time across a particular wheel-rut, or in the way of the ordinary ruts of travel. Nor could it be stated how much change within the limits in [530] question, or how much increased exposure by it, would take away its original character as a defect for the continuance of which towns are liable. It was- properly left to the jury under proper instructions. Exceptions overruled.