A way dedicated by the land-owner to public travel, and used as a highway twenty years without interruption, becomes a highway by prescription.
Whether a traveller, seeking to recover for injuries from a defective highway, was guilty of contributory negligence, is a question of fact for the jury.
SMITH, J.
The question is whether the instructions requested were correct. There was evidence from which the jury might find that the embankment way was dedicated to the public travel and was used as a highway for twenty years without interruption. A way so dedicated and used becomes a highway by prescription, and evidence of such dedication and user is conclusive not only against the land-owner, but also against the town sought to be charged with the duty of keeping the highway in repair. Stevens v. Nashua, 46 N.H. 192; Burnham v. McQuesten, 48 N.H. 446; State v. Morse, 50 N.H. 9, 15; Walker v. Manchester, 58 N.H. 438. The statute is, that a highway used as such for public travel over it, other than travel to and from a toll-bridge or ferry, for twenty years, is a legal highway. Gen. St., c. 68, s. 8; G. L., c. 74, s. 8.
Whether it was want of ordinary care for the plaintiff not to stop before attempting to cross the bridge, — whether in fact he was guilty of negligence which contributed to his injury, — was for the jury — Daniels v. Lebanon, 58 N.H. 286; Stark v. Lancaster, 57 N.H. 88, and authorities cited; and the instructions given were proper and sufficient. Those requested left nothing for the jury to find upon that point, but called upon the court to rule as matter of law what was a question of fact for the jury.
Exceptions overruled.
BINGHAM, J., did not sit: the others concurred.