
    Sarah Lyons vs. Inhabitants of Brookline.
    Norfolk.
    January 28. — 31, 1876.
    Colt & Endicott, JJ., absent.
    A child injured, while sitting upon the sidewalk of a public highway, by the falling upon her of a stone left there to be used as a curb-stone, is not a traveller upon the highway.
    A town which places stones insecurely in a highway is not liable to a person injured by one of the stones falling upon him, the fall being caused by the act of a third person.
    Tort for personal injuries sustained through an alleged defect in a highway in the defendant town.
    At the trial in the Superior Court, before Dewey, J., there was evidence tending to show that the plaintiff, a child between three and four years old, was permitted by her parents to go out into a public highway in the defendant town, for the purpose of walking thereon; that she sat down on the sidewalk with her feet in the gutter, near some stones that had been placed there by the defendant to be used as curb-stones; that there were other young children playing about these stones, and that in consequence of the acts of these other children one of the stones, which had been insecurely placed, fell over and broke one of the plaintiff’s lega and injured the other.
    
      The judge instructed the jury to return a verdict for the defendant if they should find the facts to be as above stated. The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.
    
      A. B. Berry, for the plaintiff.
    
      M. Williams, Jr., for the defendant,
    was not called upon.
   By the Court.

The jury, under the instructions given them, having found that the plaintiff was not travelling in the highway, and that the injury to her was caused by the act of third persons, the town is not liable. Tighe v. Lowell, ante, 472. Kidder v. Dunstable, 7 Gray, 104. Exceptions overruled.  