I cannot bring myself to regard the condition of the highway complained of in the present case as a dangerous embankment within the meaning of the statute. This court has held that a dangerous embankment, within the meaning of the statute, is one which reasonably ought to be permanently railed to make the highway safe; that the question is whether, for the repair of the unsuitable condition of the highway, reasonable men would
or would not erect a railing, that if the erection of a railing is not the repair reasonably required, — if reasonable men would do something else than erect a secure railing, — it cannot be found that the want of a railing is the cause of injury. Wilder v. Concord, ante, p. 259; Owen v. Derry, 71 N.H. 405, 406. In my opinion, fair-minded men could not reasonably find that there should have been a permanent railing at the place in question. The idea of a railing along the wrought part of the way, only a foot or thereabouts from the wheel track and several feet inside of the gutter or side of the road, to guard against a mere slope between the wheel track and the gutter, caused, as the record shows, "by repairing the highway with a road-machine in the manner in which country roads are ordinarily repaired," strikes me as absurd and far removed from anything contemplated by the legislature. It is not going too far to say that a permanent railing at the place in question would be a public nuisance. Laws 1899, c. 59, s. 1. It is hardly probable that by section 1, chapter 59, Laws 1893, a town is required to erect a railing where, by the, provisions of section 1, chapter 59, Laws 1899, it will be a public nuisance. Nor can I bring myself to regard the mere slope in the highway, where the plaintiff was traveling and injured, as a defective sluiceway within the meaning of the statute.
Upon the facts presented, I am of the opinion that the nonsuit was properly ordered.