
    Louisa A. Lowe vs. Inhabitants of Clinton.
    Worcester.
    October 5. —16, 1883.
    Field & W. Allen, JJ., absent.
    In an action against a town for injuries occasioned by an alleged defect in a highway, the evidence was conflicting on the point whether the defect was in a footpath or in the grass by the side of the path. The judge instructed the jury that the plaintiff could not recover unless the defect was in the footpath; and declined to instruct the jury that, if the obstruction complained of was in the grass, and out of the path, the plaintiff could not recover. Held, that the defendant had no ground of exception.
    Tort, for personal injuries occasioned to the plaintiff by an alleged defect in a highway in the defendant town. After the former decision, reported 133 Mass. 526, the case was tried in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows:
    On the night of May 9, 1879, the plaintiff, while walking on the east side of North Main Street in the defendant town, struck her foot against a pine stump, and was thrown down and injured.
    The evidence tended to show that for nearly forty years the greater portion of the foot travel along the highway in question had taken a defined path on the easterly side, contiguous to the fence, and on a level with the wrought road; that in 1876, the road was cut down for some distance, (about fifteen or eighteen inches at the place of the accident,) leaving the footpath at its former level; that, at the same time, the fence on the easterly side had been moved back about two feet; that there was grass on each side of the path, but the evidence was conflicting whether it extended one foot or two feet from the fence; that the stump against which the plaintiff struck her foot projected one and a half to two inches above the soil. The witnesses differed in locating this projection at from eighteen to thirty inches from the fence.
    The case was submitted to the jury, with full instructions as to the liability of towns for injuries caused by defects or obstructions in and near to highways and footpaths along highways, and, among others, that the plaintiff could not recover unless the alleged defect was in the travelled path, and none of said instructions were excepted to; but the defendant asked the judge to rule that, if the obstruction complained of was in the grass, and out of the travelled path, the plaintiff could not recover, which instruction the judge declined to give.
    The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.
    
      J. W. Qor cor cm, for the defendant.
    
      W. S. B. Hopkins ¿f* J. Smith, for the plaintiff, were not called upon.
   By the Court.

The instruction requested by the defendant was given in substance by the presiding justice of the Superior Court, who instructed the jury that “the plaintiff could not recover unless the alleged defect was in the travelled path.” Under this instruction, the jury must have found that the obstruction was in the travelled path, and not out of it and in the grass.

Exceptions overruled.  