314 Mass. 42 | Mass. | 1943
This is an action of tort to recover for personal injuries sustained by the plaintiff while in the employ of the defendant, which was not a subscriber under the workmen’s compensation act. At the close of the evidence the defendant moved for a directed verdict in its favor. The motion was denied, subject to the defendant’s exception, and the jury returned a verdict for the plaintiff.
There was evidence that if the switch of the big burner was on and the switch in the office was pulled on, “that started the motor, drawing up the oil and vaporizing it into the pit and then you had to light it”; that, if the big burner was running twenty minutes and was not ignited, the burner and the smoke pipes would be filled with unused oil fumes; and that the accumulation of the vapors of oil was explosive and dangerous if ignited. There was no thermostatic . .or automatic control on the burner that would cause it to shut off, and the vapor would come in and stay there. There was expert testimony that the explosion was caused by the accumulation of unburned gases in the heater and smoke pipes, which were ignited by the heat or the flame of the small burner; that it would be practically impossible to say definitely what was the cause of the accumulation of gas but that an accumulation of soot in the chimney, and pipes leading to the chimney, would be an adequate cause of the igniting of the unburned gases in the burner in that it would prevent their escape through the chimney ,in the normal way. There was also evidence that there had been
In the instant case the defendant, as an employer, owed the plaintiff a duty to use reasonable care to provide him with a safe place in which to work, and to furnish and maintain reasonably safe and proper machinery and appliances with which to perform the work he was hired to do. Ryan v. Fall River Iron Works Co. 200 Mass. 188, 192. Neiss v. Burwen, 287 Mass. 82, 89. Novash v. Crompton & Knowles Loom Works, 304 Mass. 244, 247. The jury would have been warranted in finding that the large biirner was out of repair and had not been properly maintained; that the switch thereto had been put on by some agent or servant of the defendant other than the plaintiff without his knowledge;. that the starting of the motor caused the accumulation of gases which were prevented from escaping by soot in the flue pipe and chimney, which had not been cleaned for a year and a half; that the accumulated vapors were ignited by the heat or the flame of the small burner; and that this condition was due to negligence in maintenance or mechanical defects. See Souden v. Fore River Ship Building Co. 223 Mass. 509. They could also have found that in throwing on
It could not properly have been ruled, as contended by the defendant, that the plaintiff contractually assumed the risk of the danger arising from the conditions before set forth. The jury could find that the danger was not one that was obvious to the plaintiff at the beginning of his employment since there was evidence that the large burner had been in operation during the prior winter, that it worked all right when first put in operation, “but along towards the end of the winter it began not to work good” and had not been repaired. Neiss v. Burwen, 287 Mass. 82, 91, and cases cited. The defences of contributory negligence and voluntary assumption of risk are not open to the defendant. G. L. (Ter. Ed.) c. 152, § 66. Novash v. Crompton & Knowles Loom Works, 304 Mass. 244, 247.
The defendant’s contention that the evidence as to any negligent conduct on its part does not go beyond mere conjecture cannot be sustained. As we have pointed out before, there was evidence of negligence in the maintenance of the big burner in question and of some one of the defendant’s agents or employees in putting on the switch thereto, to which access could be had only by its agents and servants. While the expert testified that he could not say definitely just what ignited the fumes in the large burner, he expressed the opinion that they might have been ignited by the heat or the flame of the small burner. The plaintiff, however, was not required to exclude all other possibilities as to the cause of his injury, but was only required to show by the evidence a greater likelihood that his injuries came from an act for which the defendant was responsible than from a cause for which it was not responsible. Rocha v. Alber, 302 Mass. 155, 157, 158, and cases cited. We are of opinion that it cannot be said as matter of law that the
The defendant was not entitled to a directed verdict.
Exceptions overruled.