If by reason of improper construction or negligent maintenance the railroad was in an improper condition at the time and place of the accident, and thus rendered the highway unsafe for travellers, it is well settled that the town is primarily responsible, though it might have a remedy over, by virtue of Pub. Sts. c. 113, § 32. Hawks v. Northampton, 116 Mass. 420. Prentiss v. Boston, 112 Mass. 43. Johnson v. Salem Turnpike & Chelsea Bridge Co. 109 Mass. 522. But if the location of the railroad was duly authorized, and it was built and maintained in *509a proper condition, then it was lawfully in the highway, and the town would have no right to remove it, and cannot be held liable for an injury to a traveller occasioned by it. Davis v. Leominster, 1 Allen, 182. Jones v. Waltham, 4 Cush. 299. Young v. Yarmouth, 9 Gray, 386. Cushing v. Boston, 122 Mass. 173. Lawrence v. New Bedford, 160 Mass. 227. It was therefore competent for the defendant to show that the condition of the railroad at the time and place of the accident was such as was proper and necessary for its safe operation, and that a guard rail such as was used at that place was necessary.
The plaintiff now contends that evidence to this effect was not excluded; but we think it quite plain that the defendant offered to show that a guard rail was necessary to the operation of the road in that place, on that curve; and that the evidence was excluded.
A similar question is presented by the defendant’s request for a ruling, that if the street railway “ is constructed in a proper manner, and if in fact the portions of its construction which may be complained of as defects are necessary to its operation as a street railway, though it or they may be obstacles to travel, or present dangers to those using vehicles, they would not ón that account be defects in the way.” This is in substantial accordance with the doctrine as established by the decisions above cited, and should have been given.
The plaintiff at the argument contended that the defendant’s offers of proof and requests for rulings all related to the original construction of the railroad, and not to its condition at the time of the accident. But this appears to us to be too narrow an interpretation of the bill of exceptions. There is nothing to show that the condition of the railroad had deteriorated, or that any point of this kind was made at the trial. Fairly construed, we think the offers of evidence and the requests for instructions related to the condition of the railroad at the time of the accident.
The result is that the entry must be,
Exceptions sustained.