This is an action on the case against the defendant town, for an injury occasioned by a defect in an highway, which they were bound to keep in repair.
To entitle the plaintiff to recover, notice to the town of the defect must be proved. It may be proved directly or inferentially. It may be proved by actual notice to one of the inhabitants, or facts and circumstances may be shown, from which notice may be inferred. But the inference is not of law, but of fact. It is one for the jury to draw.
The presiding justice instructed the jury that if they found that the defect, which occasioned the injury, was open and visible during the whole month of November, that that fact was sufficient notice, though actual notice was not proved, and that if they found a legal defect, and that it was open and visible during the whole month of November, that that fact constituted sufficient notice.
There is no rule of law prescribing for what length of time the continuance of a defect shall constitute notice of its existence. There is no presumption of law on the subject. Whether there was a defect, the length of time it had continued, and whether from its continuance, notice to the town of its existence could be inferred, were alike questions to be determined by the jury, and not by the court. The ruling of the presiding justice was erroneous, in withdrawing from the jury one of the very questions which it *184was their province to determine, and in determining it for them, instead of submitting it to them decision. Exceptions sustained.
Cutting, Walton, Dickerson, Barrows, and Daneorth, JJ., concurred.