The question here is, Did a defect exist that ought to have been remedied before the accident? Palmer v. Portsmouth, 43 N.H. 265. The referee has found that the town had no notice of the defect, and was guilty of no neglect, unless it is liable for the negligence of the surveyor. The plaintiff knew of the obstruction in the highway, and attempted to pass over it before the surveyor had completed the work of removing the obstruction within what would seem to be a reasonable time. The evidence tends to show that men of ordinary care and prudence would not have attempted to do this at their own risk, under the circumstances. The plaintiff could not try the experiment at the risk of the town, and is not, therefore, entitled to recover. Hubbard v. Concord, 35 N.H. 52.
Judgment on the report for the defendants. *Page 14