Way, Defect in highway. The absence of a guard or barrier on the top of a wall which is level with a highway, the land beyond being about three feet lower, opposite a place where a stone crusher and quarry are operated, may be found to constitute a defect in the highway.
If a horse shied from fright but his driver instantly would have regained control of him had there been a barrier to prevent his going over the top of a wall on a level with the highway, a town may be found to be liable for an injury to the driver caused by the absence of such a barrier, if it ought to have maintained one there, whether the horse was frightened through the negligence of a third person or otherwise.
HAMMOND, J.
Upon the evidence, the questions whether the horse was driven with due care, whether the way was defective by reason of the absence of a barrier, whether the loss of control of the horse was only momentary and would have been instantly regained if the vehicle had not reached the defective spot, and the accident, if there had been a proper barrier, would have been avoided, and whether the defect was the sole cause of the injury, were all for the jury. There was no error in the manner in which the court dealt with the rulings requested by the defendant. The instructions under which the case was submitted to the jury were full and correct. Hinckley v. Somerset, 145 Mass. 326. Tisdale v. Bridgewater, 167 Mass. 248, 250.
Exceptions overruled.