Hudson v. Inhabitants of Marlborough

Morton, J. The defect alleged in this case was the want of a railing on Pleasant Street on the side next and near to the point of intersection with the Berlin Road. The case was submitted to a jury, and it is apparent that the jury must have found that the want of a railing did not constitute a defect, as that was the main issue on which the case appears to have been tried. The plaintiff complains of the refusal of the court to give the instruction which he requested, and also of certain por [222] tians of the charge which relate to travellers straying from highways, to so much of it as suggested that it might not make any difference to the plaintiff's right to recover that the bank over which he fell was part of the Berlin Road, and to the ruling that the plaintiff could not recover if the place where the accident occurred was more than twenty-five feet from Pleasant Street. Upon a careful examination of the charge, we do not think that either of the plaintiff’s exceptions can be sustained. The ruling requested by the plaintiff was given in substance by the presiding judge. A plaintiff has no ground of exception because the precise words of his request were not used, if it appears that it was given in substance. Parker v. Springfield, 147 Mass. 391, 393. The charge of the judge was predicated, as a whole, upon the propositions contained in the ruling requested by the plaintiff, which was, that if a railing was necessary for the proper security of travellers, and would have prevented the accident, the want of it constituted a defect which would render the town liable for an injury occurring through its absence. The judge, at considerable length, and by means of various illustrations, called the attention of the jury to cases in which a town would or would not be liable for an accident where there was no railing. We think it was proper for him to do so, and that the jury could not have been misled by anything that was said. He began his charge by saying that the statute makes a railing at certain places and highways reasonable and necessary. Then he went on to say that the railing was to render the road safe and convenient, and not to keep travellers from straying out of it; that a town was not obliged to fence its highways so as to keep travellers from straying beyond their limits, and their liability to get out of a road did not constitute a defect; but that a town was obliged to put barriers where they were necessary to make the highway reasonably safe for travellers, and if there was any dangerous place in such proximity to the road as to make travel upon that road unsafe, then the town was obliged to put up railings or barriers to protect travellers against those places; and this last statement was repeated in substance at the close of the charge. The different propositions were illustrated in a variety of ways, but we think the purport of the whole was, and that the jury must have so understood it, that the town was under no [223] obligation to fence its roads or put up barriers simply to prevent travellers from straying from the highway, and that if a traveller strayed from a highway where there was no barrier into an adjoining field, or on to adjoining premises, and met with an accident at some distance from the highway, the town would not be liable, and the failure to have a barrier at the point where the traveller left the highway would not constitute a defect in the highway; but if there was a dangerous place, a bank, hole, or anything else, in such proximity to the road as to render the road unsafe for travellers without a railing or barrier at that place, then if an accident occurred to a traveller at such place through want of a sufficient railing or barrier, the want of the railing or barrier would constitute a defect -for which the town neglecting to put up the barrier or railing would be liable. So understood, the instructions were clearly not open to exception. The suggestion in the charge, that it might not make any difference to the right of the plaintiff to recover that the bank over which he fell was part of the Berlin Road, was afterwards modified by the presiding judge, upon his attention being called to it, in such a way that the plaintiff could not have been prejudiced by the suggestion as originally made, even assuming that it was, as first made, harmful to him. The jury were then distinctly told that whether the position of the Berlin Road affected the question of the reasonableness of a railing was a question of fact for them, and that, in considering whether it was necessary to rail Pleasant Street at the place where it was contended that it should have been railed, they were to take all the facts into consideration, among which were the position and character of the Berlin Road. The ruling that, if the place where the accident occurred was twenty-five feet from Pleasant Street, the town would not be liable, was clearly correct. In such a case as that, the place where the accident occurred would not, as matter of law, be in such immediate proximity to the road as to require the town to put up a railing in order to make the road safe and convenient for travellers. Murphy v. Gloucester, 105 Mass. 470. Warner v. Holyoke, 112 Mass. 362. Puffer v. Orange, 122 Mass. 389. Daily v. Worcester, 131 Mass. 452. Barnes v. Chicopee, 138 Mass. 67. Exceptions overruled.