284 Mass. 250 | Mass. | 1933
The plaintiff was injured while in the employ of the defendant, who was not insured under the workmen’s compensation act. The declaration alleges in the first count negligence of the defendant in not warning him of dangers in the place where he was at work and in failing to provide him with a suitable place to work, and in the second count negligence of the defendant in failing to provide proper tools and appliances and to instruct him as to the use of the tools and appliances furnished. The trial judge directed a verdict for the defendant with the stipulation that if the direction of a verdict was proper, judgment should be entered for the defendant, otherwise
The plaintiff’s duties required him to feed with fuel and to tend a steam boiler in the defendant’s shops and included the removal of clinkers which might form in the boiler. At the time of his injury he was attempting with an iron bar with a round pointed end to break up or remove a large clinker three inches thick which had formed upon the grate; "he got this long pointed bar tangled in the clinker; ... he started to release the bar and had his whole heft on the end, the back end of it, and it went right through the clinker and down he went, and knocked his hand against the iron front of the door” of the boiler causing him injury. The plaintiff was injured on the third day of his employment with the defendant. On the first day the fuel provided was soft black cóal. A different fuel, which he termed "cinders,” was supplied on the second and on the third days. He described it as a mixture of cinders and coal. There was other evidence that it was reclaimed coal from the residue in the ash pits in the different engine houses of the defendant where its locomotives were kept. The plaintiff testified that this fuel burned well when first put in the boiler but later iron ran out of it which formed clinkers on the grate, blocked the passage of air to the fire and caused the steam to drop, and that many more clinkers formed from this fuel than from the soft coal burned on first day. There was evidence that at and about the time of the plaintiff’s injury the defendant was experimenting with different kinds of fuel.
Since the defendant was not insured under the workmen’s compensation act the only question raised by the direction of a verdict is whether there was evidence of negligence of the defendant, as alleged in the declaration, which contributed to cause the plaintiff’s injury. McGonigle v. O’Neill, 240 Mass. 262. Sylvain v. Boston & Maine Railroad, 280 Mass. 503. The formation of clinkers on the grate was within the contemplation of the parties when the contract of employment was made: their removal was included in the tasks which the plaintiff was to perform.
The pointed iron bar which was being used by the plaintiff when he was injured was furnished to him when his employment began and there is nothing to show that any other kind of iron bar was used at the defendant’s shops. He had used similar bars at other places where he had worked for similar purposes both before and after the accident although he had at one place used a different and better bar. A witness called by him testified as an expert that when clinkers “get cold and weld themselves almost to the grate,” it is necessary to use a chisel bar and a chisel hammer; that he would not use a round pointed bar on the clinker in question, that it would have a tendency to slide over the top of the clinker. But that is not what happened
There being no evidence of negligence of the defendant judgment must be entered on the verdict.
So ordered.