Marshall V. Inhabitants of Ipswich

110 Mass. 522

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1872
• Status: Published

Opinion

Ames, J.

The exact position of the pile of bricks upon which the plaintiff fell was in dispute, and the evidence upon the subject was conflicting. The road was level through its entire width of forty feet, and worked for travel. It is not suggested that under ordinary circumstances there was any peculiar difficulty in seeing its limits, or any special liability to stray beyond them <m account of their uncertainty. The plaintiff was crossing the road, in the dark, and just after a fall of snow by which the bricks were partially covered, so that as he claimed it was impossible to tell where they were. In this position of the case, the defendants asked for an instruction to the jury that, if the bricks were wholly outside of the limits of the highway, there was no such defect as to make it the duty of the town to erect “ a railing or barrier, either to protect the traveller, or to warn him of the limits of the highway and prevent him from straying.” We think that such an instruction should have been given.

It is well settled that towns are under no obligation to light the highways, or to erect railings for the mere purpose of preventing travellers from straying from the travelled path. Sparhawk v. Salem, 1 Allen, 30. Macomber v. Taunton, 100 Mass. 255. Randall v. Eastern Railroad Co. 106 Mass. 276. The purpose of such railings is to make the way itself safe and proper for use. They are required in the case of bridges, embankments or causeways, and generally where excavations, deep water, &c., are so near to the line of public travel as to expose travellers to unusual hazards. Adams v. Natick, 13 Allen, 429. But we do not understand that the fact, that land “ immediately contiguous to the highway ” is uneven, or rocky, in a condition unsuited to be travelled upon, or incumbered with objects which if in the highway would be impediments or defects, is sufficient of itself to make it the duty of a town to set up a railing by the roadside. There are very few of our common country roads that would not be found to need such a barrier, if the duty of towns were to be carried to such an extreme. Under the instructions given upon this point in the case, the jury may have found against the defendants, without any proof that there was any impediment or defect within the actual limits of the highway, or within the apparent line of travel, or even so near to the line of travel as to make the road itself unsafe. The plaintiff was allowed to recover on proof of an additional element, to which, as matter of law, no weight whatever could properly be attached, namely, a temporary or accidental uncertainty as to the limits of the way, whereby he got upon the adjoining land, and was there injured.

The defendants also requested the court to rule, substantially, that if the alleged impediment or defect was wholly outside of the travelled path, although within the located limits, the defendants were not bound to erect a barrier or railing. We think that the court should have so ruled. The snow is not alleged to have been an obstruction which the town was bound to remove. A portion of the pile of bricks might extend within the located limits of the road, without obstructing the travelled path, or necessarily constituting an impediment or defect.

For these reasons, it is impossible to do otherwise than to ordei that the ^Exceptions be sustained.