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322 BROWN V. WINTHROP. [270 
error. The instruction requested by the defendant was a
final statement of the law and undoubtedly was so con-
by jury. sidered the It was to the effect that the absence of
the defendant from the scene of the crime at the time it was
committed was neither direct nor indirect guilt. evidence of
This was not inconsistent with the first and the instruction,
rights of the defendant fully were protected. It is to be
assumed that the jury understood and in acted accordance
with the instructions given.
The defendant contends that argument the of the district
attorney was improper, and while he objected to it he saved
no exception. As no reversible error appears, the entry
must be 
Judgment affirmed. 
Mary Winthrop. A. Brown Town of vs.
Sargent. Same vs. Ezekiel C. 
. 12, February Middlesex. November 4, 1929- 1930. 
Rugg, C.J., Crosby, Pierce, Carroll, Present: Wait, & JJ.
Way, Negligence, Public: Contributory, defect. repairing Of contractor
street.
together the trial personal At of two injuries, respec- actions of tort for
tively against against a town and a contractor with whom the town
had a widening street, made contract for the of a there was evidence
placed that the contractor commenced work and a barrier across the
part traffic, of the street used for vehicular but not across the side-
widened; plaintiff, walk on the side to be way that the while on his
portion to call at a within being house the of the street which was
widened, noticed the barrier and that the street was under construc-
tion, but did not notice that the sidewalk construction; was under
that, returning while he was walking from the house and on the side-
stepped walk, place he “perfectly firm,” on a which looked but which
fall; “went down” him and caused to that the hole into which he
square eight fell was a foot and about deep; or ten inches that the
point removed; had curbstone at that been and that the trench left
“ gravel thereby dirt, had been filled with and covered with but wasn’t
tightened.” There solid” and “wasn’t was no evidence that the
repairing had undertaken the defendant contractor work of the side-
open keeping appeared it and safe for travel. It or of that the walk

323 V. WINTHROP. BROWN Mass.] 
proper of the street; that notice to close the had not voted selectmen town; injury given to the plaintiff’s was place time, and cause of the had defendant contractor contractor, whom the another over that curbstone; remove the supervision, the town to had a contract with no required by his contract with defendant contractor was and that the travel at all times. keep open and safe for the sidewalk the town to in each action. for the defendant judge ordered a verdict The trial
Held, that plaintiff guilty (1) was not of finding that the A was warranted
contributory negligence;
(2) reasonably not finding A warranted that the sidewalk was was
travel; safe for being (3) way ob- being The to travel and it not whole not closed construction, under the town vious to travellers that the sidewalk was reasonably duty safe for was under a to see that the sidewalk was left
travel; by (4) duty having delegated it The relieved of town was not such
contractor; the to defendant
(5) in the action It was error to order the verdict for the defendant
against town; the
(6) having the work of The defendant contractor not undertaken
removing duty keep for the curbstone the sidewalk safe or the to.
travel, negligence part; there was no evidence of on his
(7) plaintiff being party de- The not a to the contract between the
provision requiring town, fendant contractor and the therein the the
keep open did defendant contractor to the sidewalk and safe for travel
plaintiff; not aid the
(8) properly The in verdict for the defendant was ordered the
against action the contractor. 
23, 1927. Two actions of tort. May Writs dated
in together Material evidence at the trial of the actions
Superior Sisk, opinion. the Court before is stated in the J.,
judge The ordered a for in each action. verdict the defendant
plaintiff alleged The exceptions.
R. T. for Bushnell, plaintiff. the
R. Coulter, B. for the defendants. 
Carroll, against J. These actions of tort are the town
of and one a for Winthrop Sargent, contractor, to recover
injuries westerly by plaintiff sustained the in on the falling
1926. 3, sidewalk of Revere Street in on October Winthrop
In each case a the defendant. verdict was directed for
a contract appeared Winthrop It that the of made town
Sargent public to a Street, with widen which was Revere
. . . way. There no of the selectmen was “formal vote
Labor closing “after Sargent began Revere Street.” work

V. 324 BROWN WINTHROP. [270
is 440 Day September, in 1926.” Number Revere Street
westerly side, opposite part and its location was that on the
to be in accordance of the street which was widened with
the contract.
plaintiff 3, 1926, testified as On The follows: October
way grandson on her to see a Mrs. Buo- she was her with
at bridge a the at Revere nomo; there was barrier Street
it, they street, and into the fights two on walked with red
the stepped up on walk that them on down they “then led
The number 440.” The house had been moved back. to
no at home and to return. found one started She plaintiff
on. stepped place on sidewalk she fell. She a the when was
put to “perfectly seemed be firm” and when she which
weight right “into down and let it, her it went her forward.”
“a about or ten inches square eight The hole was foot and
not notice that the was under deep.” She did sidewalk
being the construction, but notice that street was did
testimony plain- of the As we understand the repaired.
of had portion the was on that the street which tiff barrier
travel, but it did not to the used vehicular extend been for
sidewalk.
or evidence that the horse There was further wooden
of was “in the middle the street” and “wasn’t over barrier
plaintiff the hole into which the fell sidewalk”; the that
tightened”; it that the dirt “but wasn’t was covered with
trench, leaving a and the curbstones had been removed old
fell at where the plaintiff point where the was the place
the curbstone removed; been that where curbstone had
gravel but been hole had been had removed the filled.with
other appeared also that a contractor “it wasn’t solid.” It
to Winthrop of Sargent a with the town than had contract
of westerly on Revere curbstones the side remove the
of the and cause statutory time, place The notice Street.
was to the defendant town. given of the accident
there care; of the and plaintiff’s There evidence was
tending the jury of to show facts for the consideration were
for travel. The reasonably the was not safe that sidewalk
of repair on at the going place that work was town knew
and on it to see that accident, the rested responsibility the

V. BROWN WINTHROP. 325 Mass.]
Boston, safe. 122 Mass. reasonably Burt v. way was the
Boston, Boston, 189 Mass. 7. Stoliker v. v. Campbell 223.
Connelly Boston, v. 206 Mass. 4. 522. See 204 Mass.
Mass. 271, 106 274. Somerville, Brooks v.
keep reasonably of to the sidewalk duty the town The
delegating duty this to by was not removed for travel safe
Somerville, supra. Brooks v. Stoliker v. contractor. the
evidence that the There was sidewalk was Boston, supra.
no work had been on travel; for that done the not closed
except of the accident place at the the removal sidewalk
apparent it not that curbstone; and was the side- of the
not fit for travel. repair Cody and v. under walk was
McCarthy Boston, 267, 262, Mass. v. 266 Mass. Boston, 258
cases, applicable. not are and similar
any Sargent’s negli- to find evidence of are unable We
the not gence. curbstones; He did not remove he did
keeping travel; the of the sidewalk safe for duty undertake
that he had exercised no supervision there was evidence and
in the contractor did fact remove curbstones. over the who
Railroad, Boston & Maine 223 For these reasons Coles v.
408, distinguished. is to be Mass.
on a clause in plaintiff relies the contract of the The town
to that to Sargent Sargent keep with the effect was the
and for at times. westerly open sidewalk safe travel all
not a this in party contract; to and plaintiff But the was
of that had the Sargent absence undertaken the evidence
it keeping sidewalk and repairing open work the and of
travel, Boston, supra, plaintiff v. the for see Stoliker safe
of against merely him because contract his cannot recover
514, 11 517. Nichols, Allen, Davidson v. with the town. See
in Winthrop exceptions sustained; the are v. In Brown
are Sargent they overruled. Brown v.
So ordered.