This is case, to recover damages for personal injuries sustained by the plain tiff, for an alleged defect in the sidewalk of the highway, called Manchester-street. The case finds that said street had not been opened for public use so long as twenty years when the accident occurred to the plaintiff, but that it was originally laid out in compliance with the regulations of the statute law, by the selectmen of Manchester.
The defendants’ exception is that the town-clerk of Manchester, for the year when the selectmen undertook to lay out and make a due return of their record of the laying out of the same, failed on his part to attest, by his official signature, the said record of the selectmen’s laying out, in the manner as required by law, in his book of *413records, kept for that purpose. The Revised Statutes (ch. 49, sec. 12), required the selectmen, within thirty-days, to make return of every highway by them laid out, describing the same, and the width thereof, and cause the same to be recorded by the town-clerk. On the trial of the case the plaintiff introduced a book of records of said city, containing a record of an application to the ■selectmen, an order of notice, the record of the laying out of said street, and the payment of the land damages awarded. This record was in the hand-writing of the town-clerk of the city, who is since dead, but not attested by him to be true copies of the original papers, nor did the time of making the record appear, beyond its position in the book; and evidence was offered, tending to show that the original papers were consumed with the burning of the city-hall.
The evidence thus offered showed the requisites of a proper laying out of said street, provided secondary testimony of the fact could be admitted to show a proper compliance with the law on this subject The record not being duly authenticated by the town-clerk, the next best testimony would seem to arise from the production of the original laying out of the selectmen. But this was shown to have been consumed by fire. Thus, then, is established the foundation for the production of the next best testimony of which the case admits. Were the town-clerk alive who originally recorded the doings of the selectmen, leave to amend his record by adding his official certificate according to the fact, could be granted by application to the judge who tried the cause; but his death being admitted, we must, for our guidance, resort to the rule established as to secondary evidence. “ If the record be lost, and is ancient, its existence and contents may sometimes be presumed; but whether it he ancient or recent, after proof of its loss its contents may be proved, like any other document, by any secondary evidence, when the *414case does not, from its nature, disclose the existence of other and better evidence.” 1 Gr. Ev., sec. 509. “ Again, it should appear that the record was found in the proper place of deposit, or in the hands of the officer in whose custody the record is presumed to be kept.” 1 Gr. Ev., sec. 508.
The town-clerk’s record in this instance is presumed and admitted to be, in point of time, in its appropriate place in his book; his hand-writing and death are shown ; and the selectmen’s proceedings being duly spread out on his records, we do not see why competeut evidence is not presented to the jury, from which they may infer a legal laying out of the street in question.
In the case of Hardy v. Houston, 2 N. H. 309, the court gave a construction to an earlier statute on this subject, similar in its provisions to the one in force when the laying out occurred, and decided “ that when the doings of the selectmen are returned to the town-clerk, and put on file, they were well enough recorded, within the meaning of the statute then in force.” By this decision, the certificates and attestations of the town-clerk, or actual recording of the original record of the selectmen by the town-clerk, were treated by the court as immaterial. It is sufficient that the record of the selectmen can be produced when called for, or a copy thereof. Stockbridge v. West Stockbridge, 12 Mass. 401; Willey v. Portsmouth, 85 N. H. 303; Greeley v. Quimby, 22 N. H. 335.
The second objection made by the defendants is, that but two of the selectmen of Manchester signed the original laying out of this highway. This question has heretofore been considered and settled in a former decision in this case, and elsewhere. Hall v. Manchester, 39 N. H. 302; Petition of Goffstown and Dunbarton, 35 N. H. 292; Jones v. Andover, 9 Pick. 146; Paradise Road, 29 Penn. 20. It may, therefore, be considered as settled that a majority of a board of selectmen may lay out a town road.
*415This highway having, then, been legally laid out, its-road-bed and sidewalks constructed, opened for use, and improved by the citizens of Manchester and the public generally, the remaining question occurs, whether the court may have erred in their instructions to the jury, upon one or two other material points in the case.
Ve find that the damage accrued to the plaintiff through a defect existing in the sidewalk of Manchester-street, which sidewalk was admitted to have been seven feet in width. The alleged defect was shown to have been a ditch, cut through the ice or snow across the sidewalk, leading toward a gutter located between the sidewalk and carriage path. Upon this part of the case we believe it now to be well settled that, in the compact, populous and most frequented business parts of our larger towns and cities, foot passengers may reasonably require to be accommodated and protected by the erection of suitable sidewalks, curb-stones, posts and railings, to the exclusion of teams and carriages from that part of the way; that where the wants of the public demand the construction of sidewalks, and cities and towns, in obedience to this demand, undertake to build them, they should be properly constructed and guarded, and kept in suitable repair; that they are to be considered as erected within the established limits of the highway, and may legally constitute a part of it; that it is the province of the jury to determine, from the evidence adduced, upon the nature or kind of the existing obstruction or defect, and whether it be one of which the city or town could have had notice, and could have reasonably provided against by seasonable and judicious repairs ; and whether the way, with such defect existing, was as safe and as convenient for the travel upon it as might be reasonably required under the circumstances ; or whether, as a consequence, improper and undue negligence may not be imputed, and damages be properly imposed in favor of *416an actual sufferer by reason of accident. It also becomes tbe duty of tbe jury to inquire whether the plaintiff, seeking a remedy by action at law, for injuries received in consequence of the imputed defect of way, was without fault, and, at the time of the alleged accident, was in the exercise of ordinary care and prudence. Such are believed to be some of the leading principles applicable to this class of cases, as recognized in numerous decisions in this State and elsewhere, and believed to be consistent with the rulings of the court in this case. Graves v. Shattuck, 35 N. H. 257; Hubbard v. Concord, 35 N. H. 52; Norris v. Litchfield, 35 N. H. 271; Willey v. Portsmouth, 35 N. H. 303; Johnson v. Haverhill, 35 N. H. 74; Haypel v. Carlis, 1 E. D. Smith 78; Loker v. Brookline, 13 Pick. 343; Howard v. North-Bridgewater, 13 Pick. 189; Adams v. Carlisle, 21 Pick. 146.
We are, therefore, of opinion that the exceptions of the defendants must be overruled, and that there must be
Judgment on the verdict.