The declaration seems to us to have been sufficient to include the cause of action which the plaintiff proved and relied cn at the trial. It adopts the form given in the practice act, and alleges simply a want of repair in the street. The want of a sufficient railing for the protection of travellers using due care is a defect and want of repair. In Rowell v. Lowell, 7 Gray, 102, it is said of the case of Palmer v. Andover, that it “ presented the case of a defective highway, and to such extent defective as not to be in proper repair for ordinary travel, for want of a suitable rail or barrier.” The place where the plaintiff fell was indeed outside of the line of the street; but the defect in the street which occasioned the injury was the want of a railing, if one was necessary at that place to make the street safe and convenient for travellers in the use of ordinary care. And the city would have an undoubted right to erect such a railing, although it might obstruct the entrance to the passage way of an abutter; because no person has a right to an open access to his land, adjoining a street, of such a character as to endanger persons lawfully using the street for purposes of travel. And the fact that the plaintiff fell into the passage way from the open space by the side of the street, and not directly from the street itself, would not be decisive against, his right to recover. This must be so, or else it would follow that where a town or city constructs a street over a high and steep bank, or a bridge over a stream of water, if it made the embankment or the bridge project a few inches beyond the limits of the way on each side, it would be relieved from all obligation to provide a railing. The true test, on the contrary, is not whether the dangerous place is outside of the way, or whether some small strip of ground not included in the way must be traversed in reacning the danger, but whether there is such a risk of a traveller, using ordinary care, in passing along the street, being thrown or falling into the dangerous place, that *406a railing is requisite to make the way itself safe and convenient.
These considerations dispose of the several grounds upon which the defendants asked the court to rule that the plaintiff could not support his action upon the evidence; and we can see no error in the refusal of the court to give the other instructions prayed for.
1. The court instructed the jury generally, that if anything else than the negligence of the city contributed to cause the accident, the plaintiff could not recover, and specifically, that he could not recover if he was pushed down, through the wilful act or negligence of the crowd, or any person therein. This, we think, was sufficient. They should not have been instructed that if the plaintiff was pushed down in consequence of the pressure of the crowd in which he was, he could not recover. A crowd is not unlawful, and it is not necessarily imprudent or improper to be in a crowd. The streets in a city are liable to be crowded, and are to be made safe and convenient for crowds, who are using them lawfully and carefully. That the plaintiff was jostled by other passengers, both he and they using due care, does not remove the liability of the city. It is to guard against just such casualties, which are no more censurable than a mis-step, that railings are to be provided at steep and dangerous places.
2. The refusal to give the third and fourth instructions asked, in relation to the plaintiff’s intoxication, was not erroneous. Intoxicated persons are not removed from all protection of law. The plaintiff was bound to show that he was in the exercise of due care, and the jury were so instructed. If he used such care, by himself or others, his intoxication had nothing to do with the accident. The city may be liable, under some circumstances, for an injury sustained by a person asleep, or by ■ an infant, or an insane person, or idiot, and so of an intoxicated person, if the condition of the person injured does not contribute in any degree to occasion the injury. The intoxication was an important circumstance to be considered by the jury, upon the question whether due care was used, and the jury were directed *407so to regard it, But if the plaintiff was lawfully travelling upon the street, and using due care, or due care was taken of him, he had a right to compensation for an injury done to him by the negligence of the city.
3, The refusal to grant the defendants’ sixth, seventh and eighth prayers for instructions was warranted by the reasons already stated.
Exceptions overruled.