201 Mass. 227 | Mass. | 1909
This is an action of tort brought by the administratrix of the estate of Thomas Dulligan. The declaration contained two counts. The first was framed to recover for the death of Thomas Dulligan, under R. L. c. 106, occasioned by the negligence of a superintendent of the defendant. The second count was to recover for conscious suffering of the plaintiff’s intestate arising
There was evidence tending to show that the plaintiff’s intestate was a licensed fireman, and had been employed by the defendant upon another branch of its work in a different locality until the night before the accident, when the superintendent of the defendant placed him at work at the asphalt tank. This apparatus was called a “ single car asphalt plant,” and consisted of the wheels and frame of a long platform railroad freight car, upon which were placed three tanks for the heating or mixing of asphalt, under each of which was a furnace. Each tank was fitted with a lid or cover. There was also upon the car a gasoline engine and a steam boiler, together with certain other machinery. The defendant’s superintendent, when he placed the plaintiff’s intestate at work, showed him the steam boiler, and told him to keep the steam.up so that nothing would freeze, and showed him also the asphalt tanks, and directed him to beep the covers up on a clear night, and on a rainy night to put in a barrel stave, which would hold them four or five inches up. He also gave directions as to beeping the fires under the asphalt tanks, and handed him a thermometer, for the purpose of taking the temperature of the material in the tanks, and a lantern. In order to take this temperature, it was necessary for him to climb by a ladder to the top of the tanks, and with a lighted lantern examine the thermometer, which was a tube about five feet in length, and which, when he was taking the temperature, protruded about two feet above the tank, the lower part being in the asphalt. Ho instructions were given as to what should be done if the covers were found down, nor did it appear that anything was said as to how frequently the temperature should be taken. When the plaintiff’s intestate
One question was whether the defendant, in the exercise of reasonable care and skill, ought to have known that it was likely that an explosion would occur unless constant pains were taken to see that the tanks were properly ventilated, It was within the province of the jury to find that, if the defendant was compounding a substance at a considerable heat and was utilizing the chemical processes, set in motion by the application of heat to the asphalt and petroleum product in the tank, it ought, in the exercise of ordinary prudence, to have known that dangerous gases were liable to be generated, and that due care required precautions to be taken for their harmless dissipation and prevention of accumulating in dangerous quantities. La Fortune v. Jolly, 167 Mass. 170. The second count therefore was properly left to the jury.
The defendant’s requests for ruling were rightly refused. The third, fourth, fifth and sixth requests
The eleventh and twelfth requests
The only other ruling requested by the defendant and refused by the judge was that on all the evidence the plaintiff was not entitled to recover. This could not have been given for reasons already stated.
Although the question is close, we think the case should have been submitted to the jury upon the first count, which alleged the negligence of the superintendent as a ground for recovery for the death under the employers’ liability act. The test in this respect is not whether the particular superintendent did or failed to do anything contrary to his own knowledge, but whether he failed to exercise in his employer’s business the reasonable care and skill which both the employer and fellow employees were entitled to expect and receive from him as a reasonably prudent and wise superintendent. The standard, which the law establishes in such a case, is whether he exercised the reasonable care and skill that a competent superintendent ought to have exercised under similar circumstances.
As bearing upon the knowledge that the superintendent had, or ought to have had, that fire was likely to occur from the tanks, a witness was permitted to testify that one of those tanks only a few days before the accident had given forth fire. This evidence, although admitted subject to exception, was competent within the discretion of the presiding judge for the purpose of showing that a superintendent in the exercise of reasonable care could have discovered that an explosive compound was generated in the tank. See Bemis v. Temple, 162 Mass. 342.
On the whole, we are of opinion that it would have been within the bounds of reason for the jury to find that the superintendent should have instructed the plaintiff’s intestate as to how he should conduct himself with reference to the use of the
Nor is there any error in the charge in the respects excepted to by the defendant. The statement of the evidence, to which objection was taken, while it was not in conformity to the contention of the defendant, was supported by some parts of the testimony. It was not given in such context as to impose it upon the jury as a binding statement or as anything more than a mere recitation of the judge’s understanding of the evidence. The charge also, in substance, left it open for the jury to find that it was culpable negligence, if the defendant failed to instruct the plaintiff’s intestate as to the danger existing when he found the tank covers down and went up to take the readings of the thermometer by the light of his lantern. This was correct as has been pointed out above.
The plaintiff contends that the new trial should be limited to the questions of damages alone. The responsibility of an employer for a superintendent under the employers’ liability act in some material respects differs from his common law responsibility for negligence set out in the second count, and therefore her contention in this respect cannot be supported. The result is that the plaintiff is entitled to a new trial upon the first count in her declaration, and to have the verdict in her favor upon the second count stand. Gorham v. Moor, 197 Mass. 522. Amherst Bank v. Root, 2 Met. 522, 542. Sprague v. Bailey, 19 Pick. 436, 442. Robbins v. Townsend, 20 Pick. 345, 351.
Plaintiff’s exceptions sustained; defendant’s exceptions overruled.
On this count the jury returned a verdict for the plaintiff in the sum of $4,000.
The rulings requested were as follows :
“3. If an explosion of flame in the process of melting asphalt is of such infrequent occurrence as to be unknown to men engaged in the business for periods of many years, then there is no duty on the part of a company engaged in such a business to warn its employees of the danger of such explosion.
“4. There is no failure of instruction on the part of the defendant because it did not warn the plaintiff of a danger, the occurrence of which was so infrequent as never to have arisen during the whole history of the defendant’s business, covering a period of thirteen years.
*231 “ 5. No duty lies upon a superintendent of many years’ experience to warn an employee of a danger which he had never known to arise in all his experience in that business.
“ 6. There is no evidence that the defendant or its agent ought to have known that the consequences of increasing the heat above 400° would be an explosion.”
“ 11. If the plaintiff’s intestate was in sole charge of the tanks for the night, and if he had been instructed always to keep the covers up, then the plaintiff cannot recover.
“ 12. If the plaintiff’s intestate was in sole charge of the tanks for the night, and if he had been instructed always to keep the covers up, then the plaintiff cannot recover if the explosion would not have occurred if the covers had not been down.”