
    Margaret Tighe vs. City of Lowell.
    Middlesex.
    January 12. —13, 1876.
    Colt & Endicott, JJ., absent.
    One who, being upon a highway merely for play, meets with an injury occasioned by a defect therein, cannot maintain an action for damages therefor against the city or town bound to keep the highway in repair for travellers.
    Tort for personal injuries occasioned by a defect in a public street, in the defendant city. The alleged defect was an open ditch excavated for a sewer, into which the plaintiff fell and broke her arm.
    At the trial in the Superior Court, before Pitman, J., the plaintiff, who was six years old at the time of the accident, testified that she did not remember much about getting hurt; that she was standing by the side of the sewer and fell in; that she was playing tag with another little girl; that she went out from her mother’s house, near by, to play with this little girl, and that she was not going anywhere else.
    The judge ruled that there was no evidence which would authorize the jury to find that the plaintiff was a traveller upon the highway at the time of the accident, and directed them to return a verdict for the defendant; and after verdict reported the case for the consideration of this court. If upon the evidence the plaintiff was entitled to go to the jury, the verdict was to be set aside ; otherwise judgment was to be rendered thereon.
    
      C. A. F. Swan, for the plaintiff,
    contended that the case should have been submitted to the jury ; and cited Stickney v. Salem, 3 Allen, 374 ; Hamilton v. Boston, 14 Allen, 475, 483.
    
      G. F. Richardson, for the defendant,
    was not called upon. ,
   By the Court.

The evidence at the trial showed that the plaintiff was using the highway as a play ground, and the case is governed by Blodgett v. Boston, 8 Allen, 237.

Exceptions overruled.  