The objection to the rulings and instructions of the learned judge, who presided at the trial, is not that, as mere abstract propositions of law, such rulings and instructions were erroneous, but that they did not meet all the requirements of the case. The question to be tried by the jury was whether the defect which caused the injury to the plaintiff had existed for the Bpace of twenty-four hours prior to her injury. It was not, as previously decided in this case, whether the highway was in such a condition as that it was liable to become defective at once. Monies v. Lynn, 121 Mass. 442.
*170The liability of cities and towns is limited to actual present existing defects. In Blood v. Hubbardston, 121 Mass. 233, the court decided that, where a defect for which the town was responsible existed, the town was not relieved from liability because the defect, which was the same defect, had become greater after the surveyor of highways had left it and before the injury resulted from it. But if the defect is not the same defect, although occasioned by the earlier defect, the town is not liable except upon notice or its continuance for twenty-four hours. Suppose, by way of illustration, that the water running down Market Street, passing through the hole which was testified to have existed some days before the accident, entered a drain, and, after running fifty or a hundred feet in a drain, escaped therefrom and undermined a sidewalk of that or some other street; it could not be contended that the sidewalk thus undermined was in a defective condition until it was actually undermined, although there had long existed a liability to be undermined through the ordinary operation of natural causes.
Giving to the evidence stated in the bill of exceptions the full weight to which it is entitled, and allowing to the plaintiff the benefit of all the inferences which the jury might properly draw from it, we should have difficulty in holding that the plaintiff sustained the burden which was upon her of showing that she was injured by a defect in the highway which had existed for the space of twenty-four hours. But we are not required to decide whether the defendant was entitled to the instruction asked for, that there was no sufficient evidence to authorize a verdict for the plaintiff, because there is another ground, upon which we are clearly of opinion that the defendant’s exceptions must be sustained.
The language of the presiding judge, though perhaps not to be misunderstood by the professional hearer, is subject to the criticism that it does not distinguish sufficiently between a legal defect, as applicable to a highway, and a defect in its popular signification. According to the popular understanding of the word, a defect is rather the absence of perfection than any positive quality. That is said to be a defect in machinery, which prevents a continuous use of it without injury; and any instrument is said to be subject to defect, which is liable to be *171impaired by ordinary use. In other words, an instrument ia defective which does not accomplish continuously the object for which it was designed, although it may do so temporarily; and, in popular language, a way, though presently sufficient, would be deemed defective, if liable to become so, and we think a jury would be quite likely to deem a highway defective when, by the ordinary course of the elements, it might be expected to become out of repair and dangerous ; and in several instances we think the presiding judge used language in such manner as to warrant the jury in adopting the popular instead of the legal signification of the word.
For example, he told the jury that “ the city would be liable' for the injury caused by that defect, though the rain on th< seventh of October had increased the extent of the defect, o-the danger to the persons passing over the sidewalk.” And, when requested by the defendant’s counsel to instruct the jury that “ there is no defect, unless the way is, at the time, presently perilous or dangerous,” he declined to give the instruction in that language, and used this language: “ The jury must find that there was a defect that had existed for more than twenty-four hours, that had rendered it unsafe for present travel, thougk the defect may have been secret and not developed until the time of the' accident.” We think that this language, thus used by the learned judge, was calculated to give the jury to understand, or at any rate permitted them to understand, that that constituted a defect which by the ordinary operation of natural causes would render the way dangerous.
How far a jury, in the absence of evidence, would be war ranted in speculating upon the time when the causes began tv operate, or how rapidly they operated, and when or at what tiny a secret and undeveloped defect existed, it is not important tv inquire. It is only necessary to decide, as we Lave before de.' cided between these parties in this case, that a liability to bo come defective is not in itself a defect.
Exceptions svjífaPjó .