Spooner v. Inhabitants of Freetown

139 Mass. 235 | Mass. | 1885

W. Allen, J.

The instructions were, in substance, that the only cause of injury to the plaintiff included in the notice was the want of a proper railing by the side of the road. The notice also mentioned the improper grading of the road as a defect which caused the injury. The instruction was express, that, under the notice, the jury could not consider the character of the declivity as a substantive defect. This was, in effect, a ruling that, as matter of law, the character of the declivity from the “ shoulder ” of the road to the bottom of the gutter was not pointed to by the words “ the improper grading of said road,” in the notice; and was, we think, wrong.

The constructing of the ascent from the bottom of the gutter to the travelled path was grading; and it may have been grading the road. A gutter may be part of a road-bed wrought and used for travel; it may be that part of a road-bed not prepared for travel, but wrought and used in connection with it, for receiving and carrying off water; and it may be outside of the wrought road-bed, and proper to be separated from it by a railing. It cannot be said, as matter of law, that the words “ improper grading of the road,” in the notice, do not include an improper declivity of the gutter.

There is an obvious distinction between an improperly constructed gutter, and the absence of a railing, as constituting a defect in a highway. Suppose a gutter at the side of a travelled path sloping at such an angle and to such a depth as to be a source of danger to travellers. It may be that the situation and circumstances required such a gutter for the proper construction of the road. In that case, the gutter, however dangerous, would not be a defect. Whether the road would be defective would depend upon whether it was practicable and proper to protect against the danger by a railing or otherwise. But if the proper construction of the road required only a gutter of such declivity and depth as would not endanger travellers, the gutter unnecessarily made dangerous would be itself a defect, and no question in regard to a railing might arise, for the proper construction of the road might require a safe gutter, and prohibit the obstruction of a railing.

In this case, the evidence seems to have pointed as strongly to an improperly constructed gutter as to the want of a railing against a properly constructed one, as the cause of the plaintiff’s injury; but the jury were precluded from considering the former by'the construction given to the notice. For this reason, the exceptions must be sustained.

We find no error in the other ruling of the court.

Exceptions sustained.