Thomas J. Howard et al. versus The Inhabitants of North Bridgewater, 16 Pick. 189

Per Curiam. From the facts in the case it appears, that no negligence is imputable to the plaintiffs, that the injury to their horse was occasioned by the stones in the highway as alleged in the declaration, and that the defendants had notice of the obstruction ; and the only question is, whether these stones constituted such an obstruction, as renders the defendants liable for the injury sustained by the plaintiffs. If it was such an obstruction as they were bound to remove, they are answerable. It is necessary that we should consider what is required of towns.

The St. 1786, c. 81, § 1, provides that highways shall be kept in repair and amended from time to time, that the same may be safe and convenient for travellers, with their horses, &c. Of course travellers are to use due diligence to avoid accidents, and towns are to keep the high ways in such condition that travellers using such care may go safe. We think it clear that this provision does not mean that the whole of the road, from one boundary to the other, shall be made smooth. In many cases all the property of the town would be insufficient for that purpose.

There may be ledges of rocks, ravines, and water-courses in the road. It cannot be expected that towns shall, in all cases, make bridges the whole width of the road, or fill up ravines, or cut down ledges of rock. But there may be such obstructions out of the travelled path, as will render the road unsafe ; such, for instance, as would frighten horses. It is, in some measure, a practical question, what obstructions a town is obliged to remove. If in the case before us the town would be liable to indictment, they are answerable to the plaintiffs ; if otherwise, they are not.

Here were large stones at the distance of about eight feet from the cart way ; the travelled part of the road was raised, and there w*as a gutter on each side of t, and beyond one of the gutters were these rocks. If this town is liable to indictment, probably there is not one in the Commonwealth that is not liable for the like cause. Obstructions of this description are not precisely of the same nature with pits or deep water in the road ; against which it may be incumbent on the town to put up a railing. We think that the obstruction complained of was not a defect for which the defendants are liable.

Nonsuit made absolute.