Goldthwait v. Inhabitants of East Bridgewater

71 Mass. 61

Opinion

Metcalf, J.

Neither of the three exceptions taken by the defendants can avail them. 1. The words “ditch” and “drain” have no- technical or exact meaning. They'both may mean a hollow space in the ground, natural or artificial, where water is collected or passes off. And in this sense of the words, the defective place in the road, as described by the witnesses, might, not unaptly, be termed a ditch or drain.

2. The question at the trial was, not whether an indictment could be maintained against the defendants for the alleged defect in their road, but whether they were legally answerable to the plaintiff for the injury which he received by reason of that defect. The judge therefore was not bound to instruct the jury as to the liability of the defendants to an indictment.

3. The plaintiff’s declaration does not allege, with any particularity, how or where the shoulder of the horse was broken. Of course, there was no variance between the allegation and the proof on that part of the case.

Exceptions overruled.