The exclusion of the proffered testimony of Martin L. Burbank was erroneous. It manifestly tended to prove that the road in question had become a highway by prescription or dedication long prior to the injury complained of, and afforded competent evidence upon which the jury might have so found in connection with the other evidence in the case. Willey v. Portsmouth, 35 N.H. 303, 311, 312, and authorities cited. In view of this conclusion and the changed aspect of the case resulting therefrom, which may materially affect the question of the defendants' liability and the evidence necessary to establish it, there is now no occasion to go farther and consider whether the case made by the plaintiff in respect of the negligence of the defendants' train employees entitled him to invoke the judgment of the jury.

Exceptions sustained: nonsuit set aside.

PIKE, J., did not sit: the others concurred.