Shea v. Inhabitants of Whitman

Hammond, J. The plaintiff was right in his contention that the declaration was broad enough to cover the case of a defect in a highway consisting of a want of a suitable rail or barrier. Pub. Sts. c. 167, § 94, form, “ Negligence of Town.” R. L. c. 173, § 130. Alger v. Lowell, 3 Allen, 402. It was therefore unnecessary for him to amend. The order directing a verdict for the defendant, however, was general and must stand, unless the plaintiff shows that the case should have been submitted to a jury. The plaintiff was injured by tripping over a stone. It was admitted that the stone was not within the limits of the highway. It is stated that the evidence tended to show that “ it would have constituted a defect if within the limits of the way,” but there is no evidence as to its size or shape. The plaintiff evidently proceeds upon the theory that where a stone which, if in the way, would constitute a defect, is so near the highway that travellers by tripping over it may get hurt, a barrier or railing should as matter of course be erected to protect travellers. But that is not the law. It cannot be said as matter of law that in every such case a barrier should be erected. As stated by Allen, J., in Damon v. Boston, 149 Mass. 147, 151: “ The danger which requires a railing must be of an unusual character, such as bridges, declivi [376] ties, excavations, steep banks, or deep water. Spaces adjoining roads, streets, and sidewalks, and unsuitable for travel, are often left open in both country and city; and a town or city is not bound to fence against them unless their condition is such as to expose travellers to unusual hazard.” See also Hayden v. Attleborough, 7 Gray, 338; Scannal v. Cambridge, 163 Mass. 91, and cases there cited; Logan v. New Bedford, 167 Mass. 535; Richardson v. Boston, 156 Mass. 145, and cases cited. The fact that there was nothing to mark the line of the highway is immaterial. Damon v. Boston, ubi supra. Under the doctrine thus laid down, the plaintiff failed to show a case for the jury. Bxceptions overruled.