124 Mass. 434 | Mass. | 1878
The ordinance of the city of Charlestown, offered in evidence at the trial by the plaintiff, and excluded by the court, cannot properly form, any part of the defendant’s bill of exceptions. Even if the plaintiff excepted to the ruling, which does not appear, he is not aggrieved by the exclusion, as he obtained a verdict in his favor. We cannot therefore consider that portion of the bill, or the arguments addressed to us on that subject, but must treat the questions raised by the defendant’s exceptions as if no such proffer had been made by the plaintiff. Hayden v. Stone, 112 Mass. 346, 352.
When this case was before the court upon exceptions taken at a former trial, it was decided that the steps in question did not constitute a defect in the highway for which the defendant is liable. Cushing v. Boston, 122 Mass. 173. The St. of 1824, o. 16, § 3, authorized the projection of steps into the highway in the town of Charlestown, provided they did not extend more than three feet. Whether the city' of Charlestown had authority to pass or did pass an ordinance on this subject is not before us; the St. of 1824 must therefore be assumed to have been' in force at the time of the alleged injury in 1872, and under its provisions the abutter could properly maintain these steps, which projected less than three feet into the highway. Commonwealth v. Goodnow, 117 Mass. 114. The steps were not a nuisance, and did not constitute an illegal obstruction in the highway.
The facts recited in this bill, in regard to the position, construction and condition of the steps, do not differ materially from those stated in the former bill of exceptions. They were in good repair and did not extend beyond the prescribed limit. It is true the statement made in this bill, that the “ treads ” of the steps projected beyond the “risers” three fourths of an inch, and that there was no railing or guard, did not in terms appear in the former bill of exceptions, which stated generally that the steps were constructed in the usual manner. But no evidence was offered to show that this slight projection of the “ treads ’* was an improper or unusual method of construction, and it is matter of common knowledge that it is the usual and customary method. Nor was any railing or guard required; as was stated in the former decision, the steps did not constitute a defect against which safeguards should be erected to protect travellers. Cushing v. Boston, 122 Mass. 175.
Exceptions sustained.
