Weeks v. Inhabitants of Needham

Morton, J. The evidence admitted as to the population of the defendant town, its valuation, rate of taxation, amount of appropriation for highways, and the number of miles of public ways in it, was all competent on the question of reasonable care and diligence on the part of the town in preventing or remedying the alleged defect. Rooney v. Randolph, 128 Mass. 580. Hayes v. Cambridge, 136 Mass. 402, and 138 Mass. 461. Sanders v. Palmer, 154 Mass. 475. It was for the jury to consider its weight in connection with all the other circumstances ; and, [291] so far as ifc included elements not heretofore passed upon by this court, it is enough to say that those were of the same general character as the evidence admitted in the cases cited above. The alleged admissions of Whitaker, even if believed, would not have been binding upon or evidence against the town, either as one of the surveyors of highways or as one of the selectmen ; not as one of the surveyors of highways because he was not as such the agent of the town; Walcott v. Swampscott, 1 Allen, 101; New Bedford v. Taunton, 9 Allen, 207; not as one of the selectmen, because he had no authority by virtue of his office to bind the town by such an admission or statement. Haliburton v. Frankfort, 14 Mass. 214. Groff v. Rehoboth, 12 Met. 26. Butler v. Charlestown, 7 Gray, 12. Locke v. Lexington, 122 Mass. 290. The instruction requested was, therefore, rightly refused, and that given was correct. Grould v. Norfolk Lead Co. 9 Cush. 338. Day v. Stickney, 14 Allen, 255. Brigham v. Clark, 100 Mass. 430. Exceptions overruled.