164 Mass. 393 | Mass. | 1895
This is an action of tort, for personal injuries sustained hy the plaintiff while travelling upon a public highway in the town of Adams, at a place where the highway crosses at grade a railroad operated by the defendant under a lease. The crossing was covered with planks. The plaintiff, who was driving at night in a carriage drawn by a span of horses, so guided his horses that the left forward wheel of his carriage did not touch the planks, but struck one of the rails of the railroad. This caused the wheel to break, the horses ran, and the plaintiff was thrown out and injured. We assume in his favor, without deciding, that there was evidence which would warrant a jury in finding that the planks did not correspond with the travelled part of the way, so that there was evidence of a defect in the way caused by the defendant.
We are of opinion, nevertheless, that the presiding justice of the Superior Court rightly ordered a verdict for the defendant. The declaration does not allege that any written notice of the time, place, and cause of the injury was given to the defendant, and the bill of exceptions states that no such notice was served upon it. By the Pub. Sts. c. 52, § 1, highways are to be kept in repair at the expense of the town, city, or place in which they are situated, “ when other provision is not made therefor, so that the same may be reasonably safe and convenient for travellers, with their horses, teams, and carriages, at all seasons of the