The bill of exceptions is not free from obscurity in regard to the questions which were submitted to the jury and the instructions which were given. The only exception taken was to the refusal to direct a verdict for the defendant. It is said that the judge gave instructions not excepted to in regard to the various questions in the case. It is agreed that no notice was given of the time, place and cause of the accident, as required by the Pub. Sts. c. 52, §§ 18 and 19, when an accident *198happens through a defect or want of repair in a highway or town way. By the Pub. Sts. c. 112, § 124, a railroad corporation is bound to keep such a way in repair at the crossing, when its railroad is crossed by it on a level therewith. If, therefore, the crossing where the accident happened was in a public highway or town way, the plaintiff cannot recover, because he failed to give the notice required by the statute.
The evidence seems to show beyond all reasonable doubt that there was a public way or town way at this point, unless it was discontinued by the town on the report of the selectmen in 1874. Both parties, in their arguments before us, assume that there was such a way there. As we understand the bill of exceptions, there was no dispute that the accident happened within the limits of the way unless the way within the location of the railroad had been discontinued.
With this interpretation of the bill of exceptions, the only question before us is whether the judge should have ruled as a matter of law that the public way within the location of the railroad was not discontinued by the action of the town in widening a.nd straightening the road,- or whether he might rule that it was discontinued, or leave the jury to find that there was such a discontinuance. We think that the true construction of the record of widening and straightening is that the road was altered so as to conform to the new line from the corner of the front yard of Joel Sparrow to the west line of the railroad, and then from the east line of the railroad to the line of the town of East-ham, and that so much of the way was discontinued as lay outside the prescribed lines, between the termini on the westerly side of the railroad, and between the termini on the easterly side of the railroad, and that the way within the location of the railroad was not affected by the change on each side of the tracks. For some reason, perhaps because of a real or supposed want of jurisdiction, the town authorities did not undertake to change the way in that part which crosses the location of the railroad. See Pub. Sts. c. 112, § 125; St. 1874, c. 372, § 92; Gen. Sts. c. 63, §§ 57, 58, 59; Commonwealth v. Haverhill, 7 Allen, 523. It would require very plain language to indicate an intention by the town authorities to widen or alter a public way to and from a railroad crossing on each side of it, and at the same time to *199discontinue the way across the railroad, so as to leave no right in the public to cross the tracks and to pass along the road beyond. It seems to us plain that this was not the intention of the selectmen of Orleans, or of the inhabitants of the town, in making this change. It follows that the previously existing public way across the tracks was not discontinued, but remained unchanged; and the plaintiff, meeting with an accident on account of the improper construction or want of repair of the crossing, should have given a notice to the defendant under the Pub. Sts. c. 52, §§ 18, 19.
The public records of the county commissioners dealing with this way as a highway or town way, under the jurisdiction given them by the statute, were rightly admitted in evidence, as tending to show that this was a public way before the authorities of Orleans widened and straightened it. Pub. Sts. c. 112, § 123. St. 1874, c. 372, § 90. St. 1865, c. 239, § 1.
Exceptions sustained.