This is an action in which the plaintiff recovered the sum of $687.50 in damages for injuries alleged to have been received *97by her through a defect in a highway of the defendant town. The case conies up on motion and exceptions by the defendants.
The exceptions are based upon the refusal of the presiding justice to give the four following instructions: First, that the fourteen days notice required by the statute, as preliminary to the plaintiff’s right of action, was insufficient and illegal; second, at the close of the testimony, that the action could not be maintained because of the insufficiency of the notice; third, that the evidence shew the highway to be safe, suitable and of abundant width for all purposes of public travel; fourth, that blocks of granite outside of the traveled part of the highway, and outside of that part of the road prepared for public travel, constituted no defect in the highway; that the town could not reasonably expect that a block or blocks of granite, outside of the limits prepared by the town for public travel, would frighten ordinary safe and gentle and well-broken horses.
The defect relied upon and the one specified in the fourteen days notice is described as follows: “Numerous large pieces of granite piled up along the edge and in the wrought part of the highway, for a distance of two hundred feet southerly, from the south end of the bridge in the traveled part, and on the westerly side and in the westerly ditch of said highway. Said stone or pieces of granite being from four to ten and twelve feet in length, and varying in width and thickness from one to three feet. In consequence of which the horse became frightened” and caused the accident that produced the injury complained of. The plaintiff, in the declaration in her writ, described the defect substantially in the language of the notice.
The question raised by the first exception is whether the notice upon its face contains a description of such a defect, as will, if proven, satisfy the requirements of the statute. The statutory notice requires the averment of several distinct elements, all of which are conceded to be sufficiently stated in the notice before us, except the one relating to the nature and location of the defect. The defendant’s counsel in his brief contends that the averment in the notice that the rocks, at which the horse became frightened, were located partly within and partly without the traveled part of the way, fails to describe any defect as defined by the decisions in this State, He asserts that, if *98the allegation in the notice had been that all the two hundred feet of granite lay outside the road and caused the fright qf the horse, it would be clearly bad. Upon the theory that this is the law, although it has not been judicially determined in this State, see Nichols v. Athens, 66 Maine, 404, and Farrell v. Oldtown, 69 Maine, 72, the defendant then proceeds further and asserts that “it is impossible to tell from the present notice, whether the fright was caused by the rocks in or out of the road; while the notice states specifically that it was caused by the combined effect of the two.”
We think the plaintiff’s contention requires a splitting of the hair a little too fine. Such refinement would, in this class of cases, defeat the ends of justice. The object and purpose of the notice, as defined by our court, does not contemplate the distinction as to what particular part of a defect is calculated to do the mischief. If a, town sees fit to strew along the side of the road a pile of rocks, or any other obstruction, partly within and partly without the wrought part of the way, the part within constituting a defect, per se, such pile as a whole constitutes a defect, provided the proof goes further and shows that it is calculated, as a whole, to. present an appearance that would be likely to frighten ordinary horses; and the appearance of the object is such that it should reasonably be expected by the town that it naturally might have that effect. Card v. Ellsworth, 65 Maine, 547, 555, 20 Am. Rep. 722. The plaintiff’s notice describes such a defect, namely, the pile of granite, as a whole, partly within and partly without the wrought or traveled part of the way. The object of that part of the notice we are now considering is simply to describe the nature and location of the alleged defect. It is not for the court to say primarily whether what it'describes is a defect or not. That is ordinarily a question of fact for the jury. The notice may describe something that does not exist at all, that is purely imaginary. But the court has nothing to do with that question in construing the notice. Its province is to determine whether the notice, upon its face, describes, with sufficient accuracy, the nature and location of the defect alleged, to warrant a submission to the jury of the question whether, what is described is a defect, and the defect claimed, *99Whether the proof sustains the notice has nothing to do with its legal sufficiency.
The notice then, we think, was sufficient to require the submission to the jury of the questions of fact, first, whether a part of the granite was so placed in the wrought part of the way as to constitute a defect, per se; and second, whether the pile of rocks as a whole was calculated to frighten ordinary horses, as held in Card v. Ellsworth, supra.
The second exception is to the refusal of the court “at the close of the evidence to instruct the jury that the action could not be maintained because of the insufficiency of the notice.” We are unable to determine just what this exception means. The sufficiency of the notice has already been determined under the first exception. If it means that the proof did not sustain the declaration in the notice, that was a question of fact and was properly submitted to the jury.
The third exception clearly involves a question of fact, not of law.
The fourth is based upon the assumption that the blocks of granite that frightened the plaintiffs horse were situated wholly without the wrought part of the way. But the jury did not so find. The notice did not so state, nor did the plaintiff at the trial so contend. On the contrary, it was claimed that it was the entire line of granite blocks taken together and collectively, those within, without and on the edge of the road, and not any single or particular block that constituted the defect. The presiding justice charged the jury that the burden was upon the plaintiff-, to show that those rocks situated in substance, as she has described them in her writ, frightened the horse. This instruction was based upon the evidence which tended to show that it was the combined effect of all the rocks in their entirety, considered as one object, that was calculated to present such an appearance as to frighten the plaintiff’s horse. The testimony therefore does not support the defendant’s fourth request.
“It is well settled that, if an instruction cannot be given entire with legal propriety, no exception can be taken, because not given in a modified form.” Franklin Bank v. Cooper, 89 Maine, 552. A fortiori, could no exception be taken if the modified form was not requested. The refusal to give a requested instruction, sound as an *100abstract legal proposition, but inapplicable, is not open to exception. Norton v. Kidder, 54 Maine, 189. The presiding justice rightfully withheld the requested instructions.
A careful reading of the testimony and an examination of the photographs of the locus, do not convince us that the jury so erred in finding a verdict for the plaintiff ■ as to warrant us in setting it aside. The law was clearly and carefully given by the presiding justice and every question of fact fully and fairly submitted. We do not deem it necessary or profitable to give an analysis of the evidence. There was, as there is in most cases, a conflict of testimony, but the jury found in favor of the plaintiff and we must let the verdict stand.
Motion and exceptions overruled.