I am not aware that, by law or usage, towns are required or accustomed to indicate, by any monuments, that portion of the highway which is designed for travel.
Within the laid-out limits of the highway, towns make their path designed for travel where convenience requires. No mark or bound seems to be needed to indicate where this is, excepting the fact that it is traveled. If there is any portion of the laid-out highway which the public adopts for purposes of travel, and which for any reason it is not proper should be so used, it is quite within the power of the town, by proper precautions, to exclude the public from it. Whatever portion of the way a traveller, in the exercise of due care, understands to be designed for travel, must be so considered, and the town must be liable for defects in it. In addition to the cases cited by my brother SMITH, the case of Coggswell v. Lexington, 4 Cush. 307, may be cited as very much in point. There the line of the highway was not indicated by by visible monuments, but the actual travelled way lay on both sides *Page 431 of a post, by means of which a traveller, in the exercise of due care, received an injury. It was held that the town was liable. That case is not so strong as the case at bar because in that case it did not appear that the portion of the highway complained of was within the limits of the laid-out highway. A fortiori, would the town be liable when the portion complained of was actually within the limits of the highway?
In regard to the other matter complained of, it is not to be doubted that, if the attention of the court had been called to it, the qualification would have been repeated. I do not think that under our Rule 54 such an objection can be available, unless specifically taken at the time, so that the judge may have an opportunity to remove it. Independently, however, of such considerations, it appears to me not extravagant to presume that a jury of ordinary intelligence would be able to keep in mind the whole of such a charge. I think, therefore, the exceptions ought to be overruled.