Warner v. Inhabitants of Holyoke

It was correctly ruled at the trial that “ the substantial construction of a railroad upon a former highway of the defendants, excluding public travel thereon, accompanied by the *367making of a new way beside the said railroad extending to and meeting the former highway, where the same was not occupied by said railroad, would be facts warranting the inference of a location of the railroad, which discontinued so much of the highway as it covered.” At the argument it was assumed that the railroad was duly chartered, and rightfully laid out. The new way lying east of the railroad superseded and took the place of so much of the old highway as was included within the limits occupied by the railroad. The case finds that this new way upon which the plaintiff was travelling was in a level and passable condition, and that the accident complained of happened outside of the limits of this new way, and within the limits of a carriage track or path leading from the highway, across the railroad track, into the grounds belonging to and occupied by the proprietor of a public house, known as the Ingleside Hotel. In this state of facts, the jury were properly instructed that although a town is bound to erect barriers or railings where a dangerous place is in such close proximity to the highway as to make travelling on it unsafe, it is not bound to do so where there is no such close proximity to a dangerous place, merely to prevent travellers from straying from the highway. They were also instructed that if the plaintiff left the limits of the highway, and proceeded twenty feet on a private way, and there came upon a dangerous place and was injured, there was no such close proximity to the highway as to make it unsafe, and to render defendants responsible. The law has nowhere undertaken to define at what distance in feet or inches a dangerous place must be from the highway, in order to cease to be in close proximity to it. It must necessarily be a practical question, to be decided by the good sense and experience of the jury. A perpendicular wall by the roadside, or a fence, or under some circumstances a post or a tree, might properly stand very near the travelled path, without being a defect or an obstruction or rendering the highway unsafe. In this case the jury have found that the cause of the accident was fifteen feet from the highway, and under the instructions given them must have also found that it was not sufficiently near to it to render travelling upon it unsafe. Adamt *368v. Natick, 13 Allen, 429. Murphy v. Gloucester, 105 Mass. 470. Marshall v. Ipswich, 110 Mass. 522. The plaintiff has no ground of complaint against these instructions; and the ruling that the proximity in question means “ to the highway as travelled and used,” was also correct.

The provision of Gen. Sts. e. 43, § 83, making it the duty of towns to close up ways opened and dedicated to public use entering upon and uniting with public ways, would not authorize the defendants to close a private way leading from the highway into the grounds of an adjoining proprietor, nor make them responsible for its condition. Exceptions overruled.