Kellogg v. Inhabitants of Northampton , 70 Mass. 65 ( 1855 )

Bigelow, J.^*

The ruling of the judge as to the effect of the defendants’ answer went further than was warranted by the allegations in the declaration. The existence of the highway, and the general duty of the defendants to keep it in repair in a certain designated position or vicinity, were alleged with substantial certainty and precision, and these averments, not being denied in the answer, must, by the express provision of the practice act, be deemed and taken to have been admitted. St. 1852, c. 312, § 26. It was not necessary, therefore, for the plaintiff to prove the liability of the town to keep the road in repair in the locality designated by the terms of description used in the declaration. But beyond this the admission did not. extend. The declaration did not describe the precise place in the highway in which the alleged accident happened. It did not aver it to be in the centre or on the side of the road, or in the travelled path ; nor did it allege its distance from any given point. Neither did it aver it to be the duty of the town to keep the road in a safe condition for travel within the entire space comprehended by its located limits. There was no allegation or description which would enable the defendants to designate the exact spot in the highway where the alleged defect existed. A certain portion of the entire highway was described ; but the place in that portion where the accident occurred was not designated. In this respect the declaration is wanting in substantial certainty and precision. While, therefore, the defendants were precluded by their answer from denying that the place where the accident happened was within the limits of the highway as located, and from setting up in defence that they were not bound to keep the highway described in the declaration in safe and convenient repair, we think it was open to them, on the pleadings, to prove that the exact spot where the alleged defect existed was in that part of the road which it was not incumbent on them by law to keep in a condition fit for travel..

It follows from this view of the averments and denials of the respective parties in their pleadings, that the instructions to the jury were erroneous and defective. It appears by the facts stated in the bill of exceptions, that the highway in question was of an unusual character; that it occupied a space of four rods in width, and that a large portion of it was not used for travel, being covered with grass. It also appeared that the accident occurred on the side of the road, quite near the fence, and while the plaintiff was in the act of passing from a dwelling house into the highway, and before she had reached that part of the highway which was used ordinarily by foot passengers in passing along the road. Upon this state of facts, the instructions given to the jury, although they comprehended the general tules applicable to actions of this nature, and, as abstract propositions, were correct and true, were nevertheless deficient in those qualifications and distinctions which were necessary to adapt them to the case which was proved before the jury.

Under the circumstances, we are of opinion that the defendants had a right to ask that the jury should be instructed that a town were not necessarily chargeable with damage arising from every defect existing within the located limits of a highway ; that they would not be liable for obstructions or defects in pi rtions of the highway not a part of the travelled path, and not so connected with it that they would affect the safety or convenience of those travelling on the highway and using the travelled path; and that the town would not be legally liable where an injury was sustained by a party using the road for the purpose of passing to or from his private way or path, or his own land, although it was caused by a defect within the limits of the highway as located by law, but outside the part of the road used for public travel. These instructions would have been in accordance with the well settled rules of law in this commonwealth; Howard v. North Bridgewater, 16 Pick. 189; Shepardson v. Colerain, 13 Met. 55; Smith v. Wendell, 7 Cush. 498 ; and were called for as having a direct bearing on certain aspects of the case which were developed by the evidence.

Exceptions sustained

* Dewey, J. did not sit in tMs case.