| Mass. | Feb 27, 1908
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" court="Mass." date_filed="1889-05-09" href="https://app.midpage.ai/document/damon-v-city-of-boston-6423116?utm_source=webapp" opinion_id="6423116">149 Mass. 147, 151: “ The danger which requires a railing must be of an unusual character, such as bridges, declivi
Under the doctrine thus laid down, the plaintiff failed to show a case for the jury.
Bxceptions overruled.