The instructions to the jury in this case were erroneous. Taking the statement of the plaintiff’s witness, who was with the deceased at the time of the accident, to be true, it is clear that no cause of action against the defendants was proved. His testimony shows that the deceased was not using the railing, which is alleged to have been defective, for a purpose for which the city was bound to erect and maintain it. His improper and unauthorized act contributed to the accident.

The legal obligation of keeping a sufficient railing upon a highway is imposed only when it is necessary to mark the limits of that part of the road within which persons may safely travel, or to furnish a guard against dangerous places, so that proper protection may be afforded to those who in the exercise of due care as travellers, while passing or standing on the way, might *377otherwise be exposed to accident or injury. If a person, without fault or negligence on his part, is forced against a railing, or takes hold of it to aid his passage, or falls against it by accident, or has occasion to use it in any way in furtherance of the lawful and reasonable exercise of his right as a traveller, and by reason of any defect or insufficiency it gives way and causes an injury, a town or city would be liable to make full compensation for the damages thereby occasioned. But this is the extent of the liability. A city or town is not bound by law to erect and maintain railings for persons to sit upon or lean against. They are not intended to be used for the convenience and accommodation of those who seek for a place of rest, while they stop in the highway to lounge, or to recover from fatigue, or to engage in conversation. If a person uses them for such purposes, he does it at his own risk. A town or city cannot be held liable for damages which are sustained by persons in consequence of improper or unauthorized uses of the highway, which occasion or contribute to accidents. Suppose a person should tie his horse to a railing, and in consequence of its being decayed or otherwise out of repair, the horse should escape and sustain an injury. No one would contend that in such case an action would lie to recover damages of a town or city, which was bound to keep the way in repair, and to guard it with a sufficient railing. We can see no distinction between such a case and that on which the plaintiff relies to sustain his action.

The fact that the railing was defective and would have proved an insufficient barrier in case it became necessary for a traveller to use it for a legitimate object is'wholly immaterial. It is a sufficient answer to the plaintiff’s case, that the defendants were not bound to keep the railing in repair for the purpose for which it was used by the deceased at the time of the accident. Richards v. Enfield, 13 Gray, 344. It is equally immaterial to attempt to ascertain the secret motives or intentions of the deceased. The rights of the parties must be determined by acts of the deceased at the time when the occurrence took place. These indeed furnish the only means by which to ascertain his motives. Inasmuch as it appears that the deceased *378leaned against the railing “ while engaged in conversation generally ” with his friend, and there is no evidence of any necessity or exigency which required him to use the railing at all, there is no room for an inference that he was in the exercise of a lawful right so as to entitle his administrator to maintain this action.

Exceptions sustained.