Pratt v. Inhabitants of Amherst

2 N.E. 772, 140 Mass. 167, 1885 Mass. LEXIS 308

Opinion

Morton, 0. J.

The instruction requested was properly refused, because it was not applicable to the facts proved. It assumed that the selectmen had erected and maintained a railing for the purpose of marking the travelled part of the road, and that the post against which the plaintiff ran was a part of this railing.

The facts were, that they had not maintained such railing; and that, at the time of the accident, the post was standing by itself, not a part of a continuous railing. Besides, it is not the duty, nor within the power, of the selectmen to alter a highway or town way; and, if they erect a railing within the way for the purpose of changing the line of travel, it is a question of fact for the jury to determine whether the way is thereby made defective.

The case was properly submitted to the jury.

jExceptions overruled.