
    William Pomeroy versus The Fifth Massachusetts Turnpike Corporation.
    In an action against a turnpike corporation for damage done to merchandise through the insufficiency of a bridge, and which was more than fifty feet in length from one abutment to another, the driver of the wagon containing the merchandise, which weighed more than forty-five hundreds, testified, that he did not inform any toll-gatherer that his load weighed more than forty-five hundreds ; that he frequently drove loaded wagons over the road, which usually exceeded that weight, but that he never informed any toll-gatherer of it, not having been inquired of as to the weight. It was keld3 that the evidence would not authorize the jury to infer the consent of a toll-gatherer to his passing over the bridge, which is required by St. 1813, c. 160, § 4, in such case, in order to render the corporation liable for damages.
    This was an action on the case, brought to recover damages for an injury done to a quantity of merchandise, in consequence of the insufficiency of a bridge in Athol, which formed a part of the turnpike road of the defendants.
    The defendants pleaded the general issue, which was joined ; and also a special plea, which alleged that the bridge was more tnan fifty feet in length from one abutment, pier or trussel part, to another; that the merchandise was in a loaded wagon, the weight of which, exclusive of the team and carriage, exceeded forty-five hundred gross weight, and that the wagon was driven over the bridge without the consent of any toll-gatherer, or agent of the defendants. The plaintiff replied, that the wagon was driven over the bridge with the consent of a toll-gatherer of the defendants. Issue was joined also on this replication.
    The St. 1813, c. 160, § 4, provides, that if any person shall drive over any turnpike bridge, which shall be more than fifty feet in length from one abutment, pier or trussel to another, without the consent of the toll-gatherer or agent of the turnpike corporation, any loaded wagon the weight whereof shall exceed forty-five hundred gross weight, exclusive of the team and carriage, and shall thereby break down such bridge, he shall not recover any damages of the corporation.
    The trial was before Morton J.
    One Blake was produced on the part of the plaintiff, as a witness ; who testified, that be drove the wagon which contained the plaintiff’s merchandise, over the turnpike road ; that he did not inform any of the toll-gatherers that his load exceeded forty-five hundreds in weight; that he was in the practice of driving loaded wagons over this road ; that the loads usually exceeded forty-five hundreds in weight, but that he never informed any toll-gatherer of it, having never been inquired of as to their weight.
    Upon this evidence the judge directed a nonsuit; which was to be taken off, if the Court should be of opinion that the evidence was sufficient to authorize die jury to infer the assent of a toll-gatherer ; otherwise it was to stand.
    
      Sept. 29th,
    
    
      R. E. Newcomb, for the plaintiff.
    
      Oct. 2d
    
    
      Wells, for the defendants.
   The Court

held that the assent required by the statute must be given upon a notice to the toll-gatherer, that the load exceeds forty-five hundreds in weight.

Nonsuit made absolute. 
      
       See Revised Stat. c. 39, § 43.
     