322 Mass. 313 | Mass. | 1948
This is an action of tort for the conscious suffering and death of the plaintiff’s intestate, Quentin Charles Epaul, resulting from an accident on Roseland Street, Springfield, on May 20, 1942. The jury returned a
Except for two matters, the story of the accident must be gleaned from the following testimony of the defendant, who was called as a witness by the plaintiff. The defendant was employed by his brother Timothy collecting empty barrels. The decedent had formerly worked for Timothy off and on but had not been employed by him for about six months. On the morning of the accident the decedent had ridden with the defendant collecting barrels in a truck equipped with a V eight motor. After dinner the defendant went out alone, and while about a quarter of a mile away from his place of business on Roseland Street the truck “went dead.” The defendant attempted to flood the carburetor by pushing the choke back and forth. The carburetor was located at the base of the V formed by two banks of four cylinders each. “He knew that if you flooded the carburetor the gas would run out. He had seen it done. He had done it himself before lots of times. If you look at the carburetor you can see the gasoline coming out of it. If the gasoline ran out of this carburetor it would run down the block where he supposed it would evaporate” ■— it would run down into the bottom of the V, the flat place between the two banks of cylinders. The flat place was about four inches wide. It was under the carburetor. If the carburetor was flooded the gasoline would run out of it onto that flat place. The flat place “gets as hot as the rest of the motor.” After a time he left the truck and went to get some gasoline. (From the testimony of another witness the jury could find that he also called on the decedent and told the latter that he was having trouble with the truck. The decedent then went with him.) The defendant then primed the engine with gasoline. He took off the cleaner or filter on top of the carburetor. It left a round hole about two inches in diameter. He poured gasoline into that hole; just enough to fill it. He then got into the cab and pressed the starter button. The engine started and then stopped. He poured in more gasoline and started the engine again. It ran for a
A witness, who was in a nearby window, testified that she heard a little explosion; that she did not see the decedent fall off the truck; that she saw the truck making an abrupt stop; and that she went outdoors and saw the decedent lying on the roadway. The decedent later died in a hospital from a fracture of the skull.
In riding on the fender and pouring gasoline into the carburetor the decedent was acting for the benefit of the defendant. Whether he volunteered his assistance or was requested to help by the defendant is immaterial. The defendant owed him the duty to exercise reasonable care for his safety. Woods v. Woods, 295 Mass. 238. Donovan v. Johnson, 301 Mass. 12. Lakube v. Cohen, 304 Mass. 156. Included was the obligation to warn him of dangers incident to the work he was performing, which he did not know of and could not reasonably have discovered, and of which dangers the defendant knew or should have known. Carpenter v. Sinclair Refining Co. 237 Mass. 230. No warning by the defendant as to the obvious hazards of riding on the fender was necessary. Sullivan v. Ridgway Construction Co. 236 Mass. 75. As to the danger of flame from the motor, the evidence does not show that the defendant possessed any greater knowledge than the decedent. The defendant knew that if the carburetor was flooded the gasoline would run over and down on the motor. The decedent also must have known this. Both doubtless were aware of the general consequences which might result from pouring gasoline on hot metal. If it was negligence for the defendant to attempt to start the motor in the manner indicated it must have been negligence for the decedent to assist the defendant in that attempt. Perry v. Loew’s Boston Theatres Co. 291 Mass. 332. Hietala v. Boston & Albany Railroad, 295 Mass. 186, 191.
The judge was right in ordering the entry of verdicts for the defendant.
Exceptions overruled.