Pratt v. Inhabitants of Amherst

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

• Court: Massachusetts Supreme Judicial Court
• Decided: October 23, 1885
• Status: Published

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.