202 Mass. 228 | Mass. | 1909
The fundamental question is whether there was evidence which would have warranted the jury in finding that the explosion by which the plaintiff was injured was due to an accumulation of rust or moisture in the pig bed into which the plaintiff was pouring molten iron, and that such accumulation was due to the negligence of the defendant or of some one for whose negligence the defendant was responsible. There was ample evidence that such an accumulation in the pig bed might cause an explosion like what did occur. There was also evidence that for many years, up to a short time before the happening of this explosion, care had been taken to keep the beds free from rust or moisture by taking out the iron each morning, placing them upside down upon two iron rails until they were needed for use, and rubbing any spot of rust with a black oil which was provided for that purpose; but that for a few weeks or months before the explosion this practice had been abandoned; that the care of these beds had been intrusted to a new and in
On the other hand there was no direct evidence of the pres-, ence of rust or moisture in the bed, at or before the time of the explosion. The plaintiff testified that moulten iron would fly in small particles, if it struck any hard substance like the ground, or still worse, upon a board, although this would not do more than burn the clothing; that an explosion was liable to occur at any time if a vat or pig bed was not properly kept. - Other witnesses testified to the same effect. But there was no-evidence that such an explosion as was testified to could have-been produced from any other cause than an accumulation of-rust or moisture. Accordingly, we are of opinion that the; jury might have found that the explosion was due to such an-accumulation. Indeed there was direct evidence that such an explosion could not have been due to any other cause.
But it is objected that this is not enough. If the existing state of affairs, however dangerous, might, according to the ordinary experience of mankind, have been due to other causes than negligence for which the defendant was responsible, then it was for the plaintiff to exclude the operation of those causes by the greater weight of evidence. Ryan v. Fall River Iron Works Co. 200 Mass. 188, 192. Childs v. American Express Co. 197 Mass. 337, 339. Saxe v. Walworth Manuf. Co. 191 Mass.
The plaintiff might have been found to have been himself in the exercise of due care. Although an expert moulder of very
For the same reasons, he did not assume the risk of an accident like this. Wagner v. Boston Elevated Railway, 188 Mass. 437,441. He cannot be prevented from recovering on the ground that, by continuing to work after he knew that the precautions formerly taken had been abandoned, he assumed the risks arising from such employment, as in McTiernan v. American Woolen Co. 197 Mass. 238. It does not decisively appear that he had such knowledge. It is the fact, as the defendant’s counsel say in their brief, that it did not appear conclusively “ when first, or for how long a time, the pig beds had been kept on iron rails, nor why [or when] the iron rails were done away with and the pig beds kept on the ground.” These questions were for the jury.
The notice given under the provisions of R. L. c. 106, § 75, was addressed “ to the treasurer ” of the defendant, and was delivered in hand to the person who was then its treasurer. Even taking into account the contents of the notice, the jury would have had a right to find that this notice was addressed to and served upon the defendant through its treasurer. Shea v. New York, New Haven, & Hartford Railroad, 173 Mass. 177. De Forge v. New York, New Haven, & Hartford Railroad, 178 Mass. 59. McCabe v. Cambridge, 134 Mass. 484. And see Produce Exchange Trust Co. v. Bieberbach, 176 Mass. 577, 589, 590.
The case is close; but in our opinion it should have.been submitted to the jury.
Exceptions sustained.