Barnes v. Inhabitants of Chicopee
138 Mass. 67
Mass.
1884
Check Treatment
Devens, J.

To entitle the plaintiffs to recover, they must show that the defect in the highway “ which caused the injury existed either in the highway, or so immediately contiguous to it as to make it dangerous to travel on the highway itself.” Sparhawk v. Salem, 1 Allen, 30. The test is “ whether there is such'a risk of a traveller, using ordinary care, in passing along the street, being thrown or falling into the dangerous place, that a railing is requisite to make the way itself safe and convenient.” Alger v. Lowell, 3 Allen, 402. Adams v. Natick, 13 Allen, 429. A town is therefore “ bound to erect barriers or railings, where a dangerous place is in such close proximity to the highway as to make travelling on the highway unsafe. But it is not bound to do so, to prevent travellers from straying from the highway, although there is a dangerous place, at some distance from the highway, which they may reach by so straying.” Puffer v. Orange, 122 Mass. 389, and authorities there cited.

*69In determining whether a defect is in such close proximity to the highway as to render travelling upon it unsafe, that proximity must be considered with reference to the highway “ as travelled and used for the public travel,” rather than as located. Warner v. Holyoke, 112 Mass. 362. While it may be impossible to define at what distance in feet and inches a dangerous place must be from the highway in order to cease to be in close proximity to it, and while it must often be a practical question, having regard to many circumstances to be decided by a jury, yet it has been held in certain cases, as matter of law, that a jury was not authorized in finding that the dangerous place was in such proximity to the highway as to render travelling thereon unsafe.

Thus, in Murphy v. Gloucester, 105 Mass. 470, the defective place was twenty-five feet from the highway; in Puffer v. Orange, ubi supra, it was from twenty to thirty feet; in Daily v. Worcester, 131 Mass. 452, it was twenty-eight feet. In all these cases, the place where the accident happened was reached by passing over a level space, which intervened between it and the highway, yet these defective places were held not dangerously contiguous.

The case at bar is within the rule thus adopted. As appears by the report, “ there was a marked travelled path made by use and the passage of teams; ” there was also a plainly marked path worn by foot-passengers. From the worn track of teams to the edge of the bank was thirty-four feet. This bank was nine and a half feet from the highway as located, and the footpath was on the extreme southerly side of the highway. The causes of the injury to the plaintiff were the darkness, his failure to keep the carriage-path, his travelling on that made by foot-passengers at the extreme edge of the highway as located, and the subsequent misconduct of the horse. It cannot be said that a bank thirty-four feet from the travelled way as used rendered it unsafe to travel thereon. This distance was sufficient to provide for those contingencies which from time to time might render necessary a road somewhat wider than that actually travelled. Judgments on the verdicts.