Brown v. Town of Winthrop , 270 Mass. 322 ( 1930 )

Carroll, J.

These actions of tort are against the town of Winthrop and one Sargent, a contractor, to recover for injuries sustained by the plaintiff in falling on the westerly sidewalk of Revere Street in Winthrop on October 3, 1926. In each case a verdict was directed for the defendant.

It appeared that the town of Winthrop made a contract with Sargent to widen Revere Street, which was a public way. There was no “formal vote of the selectmen . . . closing Revere Street.” Sargent began work “after Labor Day in September, 1926.” Number 440 Revere Street is on the westerly side, and its location was opposite that part of the street which was to be widened in accordance with the contract.

The plaintiff testified as follows: On October 3, 1926, she was on her way with her grandson to see a Mrs. Buonomo; there was a barrier at the bridge at Revere Street with two red fights on it, and they walked into the street, “then they stepped up on the walk that led them on down to number 440.” The house had been moved back. The plaintiff found no one at home and started to return. She was on the sidewalk when she fell. She stepped on. a place which seemed to be “perfectly firm” and when she put her weight “into it, it went down and let her right forward.” The hole was “a foot square and about eight or ten inches deep.” She did not notice that the sidewalk was under construction, but did notice that the street was being repaired. As we understand the testimony of the plaintiff the barrier was on that portion of the street which had been used for vehicular travel, but it did not extend to the sidewalk.

There was further evidence that the wooden horse or barrier was “in the middle of the street” and “wasn’t over the sidewalk”; that the hole into which the plaintiff fell was covered with dirt “but it wasn’t tightened”; that the old curbstones had been removed leaving a trench, and the place where the plaintiff fell was at the point where the curbstone had been removed; that where the curbstone had been removed the hole had been filled.with gravel but “it wasn’t solid.” It also appeared that a contractor other than Sargent had a contract with the town of Winthrop to remove the curbstones on the westerly side of Revere Street. The statutory notice of the time, place and cause of the accident was given to the defendant town.

There was evidence of the plaintiff’s care; and there were facts for the consideration of the jury tending to show that the sidewalk was not reasonably safe for travel. The town knew that repair work was going on at the place of the accident, and the responsibility rested on it to see that the way was reasonably safe. Burt v. Boston, 122 Mass. 223. Campbell v. Boston, 189 Mass. 7. Stoliker v. Boston, 204 Mass. 522. Connelly v. Boston, 206 Mass. 4. See Brooks v. Somerville, 106 Mass. 271, 274.

The duty of the town to keep the sidewalk reasonably safe for travel was not removed by delegating this duty to the contractor. Brooks v. Somerville, supra. Stoliker v. Boston, supra. There was evidence that the sidewalk was not closed for travel; that no work had been done on the sidewalk at the place of the accident except the removal of the curbstone; and it was not apparent that the sidewalk was under repair and not fit for travel. Cody v. Boston, 258 Mass. 267, McCarthy v. Boston, 266 Mass. 262, and similar cases, are not applicable.

We are unable to find any evidence of Sargent’s negligence. He did not remove the curbstones; he did not undertake the duty of keeping the sidewalk safe for travel; and there was evidence that he had exercised no supervision over the contractor who did in fact remove the curbstones. For these reasons Coles v. Boston & Maine Railroad, 223 Mass. 408, is to be distinguished.

The plaintiff relies on a clause in the contract of the town with Sargent to the effect that Sargent was to keep the westerly sidewalk open and safe for travel at all times. But the plaintiff was not a party to this contract; and in the absence of evidence that Sargent had undertaken the work of repairing the sidewalk and keeping it open and safe for travel, see Stoliker v. Boston, supra, the plaintiff cannot recover against him merely because of his contract with the town. See Davidson v. Nichols, 11 Allen, 514, 517.

In Brown v. Winthrop the exceptions are sustained; in Brown v. Sargent they are overruled.

So ordered.