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456 THOMAS V. WINTHROP. [222 
Mary Winthrop. A. Thomas vs. of Inhabitants 
4,1915. 24, 1916. January Suffolk. November
Rugg, J., Braley, Courcy, Crosby, Carroll, Present: C. De & JJ. 
defect, Evidence, Way, Explanatory. Witness, Public: notice. Cross-examina-
Civil, Practice, Exceptions, tian. Conduct of trial.
projecting quarter The iron cover of a water shut-off box one and one inches above
surrounding gravel public highway the surface of a sidewalk of hard in a of a
highway. in town can be found to be a defect the
51, 18, against personal injuries In an action a L. town under R. c. for § sustained
by alleged highway reason an in consisting of defect a sidewalk of a of the town
projected an of iron cover of a water shut-off that box above the surface of the
sidewalk, employees if depart- there is evidence that the of defendant’s water
ment, including superintendent, passed place the over the two or three a times
week, employee and a former the of defendant testifies that between twelve
days and seventeen before the accident he found the box four inches the below
top surface of the sidewalk and turned the round until it level was with the
walk, days and a that few afterwards he saw that the earth around the box
away depression tramped was worn and that a was left where the earth had been
downj question jury might it is a for the whether the defendant have known of
by proper diligence the defect the exercise of care and and could have remedied
by it reasonable care.
properly may permitted In the cross-examination of a witness he be to answer a
question which is not material to the main issue on trial if the answer is neces-
sary explanation already in of a statement that he has made.
exception the An to admission of immaterial evidence will not be sustained where
excepting party by the not harmed was the evidence admitted and where
1913, 716, 1, complained injuriously under St. c. the error of has not § affected
rights parties. the the substantial of
presiding judge may the Within discretion of a evidence be admitted on the cross-
witness, testimony important, pur- examination of a whose direct was for the
witness, credibility pose testing although inquired of the of the the matter about
otherwise would be immaterial. 
51, 18, Tort under the against R. L. c. town of Winthrop §
27, 1913, for personal injuries September sustained on by reason
Street, of an the alleged Shirley defect in sidewalk of public a
it defendant highway duty which was the of the to in keep repair,
of a to have consisting pipe alleged or shut-off box been permitted
through the the defendant to negligence project of above the level
5, of the sidewalk. Writ dated March 1914.

457 V. WINTHROP. THOMAS Mass.]
Fox, At tried J. the case was before Court Superior In the
evidence, in the the opinion, which is described the close of the
make, others, the following among the to judge asked defendant
rulings:
this en- case, in the is not plaintiff evidence all the Upon “1.
to recover.” titled
the in this case to warrant no sufficient evidence There is “5.
of, that, the injury complained at the time of finding, in jury
in in to a defect the sidewalk amounting a condition there was
liable, and the de- the defendant can be held for which question,
a entitled to verdict.” fendant is
• to a that finding is no sufficient evidence warrant “7. There
unreasonably in obstructed the side- question shut-off the water
in question.” walk
evidence in this case to the There is no sufficient warrant “11.
had, of by the defendant town or the exercise in that finding jury
had, have reasonable notice of might and diligence care proper
and, therefore, on, a verdict must be returned for the defect relied
defendant.” the
make of these and any rulings, to submitted judge The refused
a verdict for the in plaintiff who returned jury, the case to the
alleged exceptions, including $750. The defendant the sum of
in of evidence which are stated the opinion. the admission those to
on briefs. The case was submitted
Orcutt, defendant. H. for the W.
plaintiff. A. for the McCaig, J.
1913, 27, Carroll, plaintiff September J. The was injured
box, cover, in as a shut-off on an iron known water by tripping
in the defendant’s town. Shirley the of Street sidewalk
find the was defective. The sidewalk jury way I. The could
box in the projected hard the of the shut-off gravel, top was of
inch, a half of an in round form of a about one sixteenth lip
inches above the and from one and one to two shape, quarter was
this walking the was on side- plaintiff of the sidewalk. As level
between the of caught top at her foot night, walk about ten o’clock
forward the she was thrown gravel, and the surface of the box
520, Woburn, plaintiff Mass. the In v. 176 and injured. Redford
inches quarter and one box one projecting on a shut-off tripped
a was an such condition gravel. Whether surrounding above the

458 V. THOMAS WINTHROP. [222
travel, obstruction to rendering defective, the sidewalk was held
to be for the Woburn, See also v. jury. O’Brien 184 Mass. 598.
of Employees the water department, the including superin-
tendent, passed over this place week, two or three a times and
witness, one defendant, a former employee testified, of the that
15, between 10 September September and he found this four box
inches the below surface of the sidewalk and turned top the
round until was it level with the days walk. A few after this he
saw the earth around the box a away was worn and depression
left where the earth had been tramped down. It was the for
jury pass evidence, to upon could, this they therefore, and find
that the superintendent of the water department must have seen
defect, the or easily might have done so. This was sufficient evi-
to dence that show the defendant of might have known the de-
fect by the exercise of care and proper diligence, and could have
remedied it by the exercise of reasonable care.
2. The superintendent of the defendant’s department water was
on cross-examination, asked “You said the street was of sort
rough; by you that mean the street around the box was in bad
condition?” To which the witness “The replied, sidewalk was
but rough, rather not duly around the box.” The defendant
said, and the excepted presiding judge “Nothing is shown here
box, the except tripping over the the questions and unless relate
to point that of they course are immaterial.” The defendant
later to requested the testimony have stricken out.
We assume from the question, previously that the witness
stated the sidewalk rough. was If this assumption right, is
the questioned witness could be the concerning condition of the
box, walk surrounding the explanation testimony. in of his former
We do not think the by defendant was harmed the of the answer
witness, especially instructed, jury when the evi- were that the
dence was immaterial only far it related to this except so as
particular point fell, any where the we not see plaintiff and do
1913, reversible error in the the on ruling judge point. of this St.
716, c. 1. §
3. This asked, any same you witness was “Have known of
and, of these water the being depressed boxes below surface?”
subject answered, to the have of the defendant “I exception
known of Yes, them. sir.” The contended that she was plaintiff

& MAINE HENSHAW V. BOSTON RAILROAD. 459 Mass.]
the box was too above high because water the surface of injured
sidewalk, and not because it was the depressed, condition the
boxes, or whether elevated depressed, being entirely other of (
The well have excluded the might immaterial. evidence. judge
be be quite its cannot said to harmful error But admission
Hack, all the One a employee under circumstances. former of
defendant, the had that in presence the testified of the defend-
box, he that the ant’s foreman did some work he found on.the
inches, and raised it the the depressed cover four to level of side-
this The was in the superintendent passing walk. habit of over
week, or he sidewalk three four times a and stated he never
had seen the box above the had never projecting sidewalk and
box, a or about the all depression seen at the “that box was at
on times the same level with the rest of the sidewalk.”
Hack, believe, In of the of the testimony jury might view which
think the of the pre- we evidence admissible within the discretion
The the siding superintendent witness was the of water judge.
a he three or four times week department, passed place over this
the In his always testing and found the box level with sidewalk.
evidence, the and his permit knowledge the could credibility judge
of in the the importance deciding question of conditions was of
Gardner, Noyes v. 147 Mass. defendant’s notice of the defect.
Somerset, Mass. 326. Hinckley v. 145 505.
the brief argued are on defendant’s exceptions The other not
them waived. and we consider
overruled. Exceptions 
Maine Railroad. vs. and Boston C. Henshaw Marion
24, January 10, 1916. 1915. November Suffolk. 
Carroll, Crosby, Braley, Courcy, & JJ. Rugg, J., De C. Present:
liability. Railroad, Employer’s Negligence,
by corporation he which freight brakeman'against the raiboad by a In an action employment course of his injuries in the personal sustained employed for was
II, the was not 1, defendant 1911, 751, effect and when took § c. Part St. after act, evidence that compensation there was under the workmen’s a subscriber