Malcolm v. Fuller

W. Allen, J. The declaration is under the Employers’ Liability Act, (St. 1887, c. 270,) and alleges that the plaintiff was employed by the defendant, and was injured by the negligence of a person in the service of the defendant, and intrusted with and exercising superintendence. The plaintiff was injured while engaged in blasting rock with two other employees of the defendant, and he relied upon proof that the negligence of one of them, Stewart by name, caused the injury, and that Stewart was a superintendent. The defendant contends that there was not sufficient evidence to justify submitting either question to the jury. The evidence in regard to the superintendence of Stewart was conflicting; that put in by the plaintiff was clearly sufficient to justify a finding that Stewart was the general superintendent of the quarry, but the defendant contends that, in the act which caused the plaintiff’s injury, Stewart was acting as a servant, and was not exercising superintendence. The evidence shows that Stewart had been engaged in manual labor in drilling the holes for blasting, and that his act in striking the drill held by the plaintiff was the immediate occasion of the explosion which caused the injury to the plaintiff. But the plaintiff does not rely upon any evidence of negligence of Stewart in the manner of drilling the holes, or of striking the drill. The negligence which the evidence tended to prove is the manner of clearing out the hole in which the tamping remained after the discharge. If Stewart was superintendent, he was exercising superintendence in determining the manner in which the hole should be cleared out, and in directing the plaintiff to assist, and himself assisting in drilling it out. In that respect, it was immaterial whether he himself struck the drill or ordered another person to do it. The question whether the indications that the charge had exploded were such as justified Stewart in deciding to drill out the hole, instead of removing the tamping in some other way, was properly left to .the jury. The jury were instructed, at the request of' the defendant, “ If Stewart had a right to assume, as [167] a prudent man under the circumstances, that both charges had exploded, the plaintiff cannot recover.” It is not contended that the question whether the plaintiff was in the exercise of due care was not properly left to the jury, upon sufficient evidence, but the defendant contends that the danger was one the risk of which was taken by the plaintiff, as incident to the employment, and relies upon Kenney v. Shaw, 133 Mass. 501, which closely resembles the case at bar. In that case, which was before the passage of the St. of 1887, c. 270, it was not found whether the explosion which caused the injury to the plaintiff was caused by his negligence, or by the negligence of the superintendent, who was a fellow servant with the plaintiff, or without the negligence of either. If there was any negligence, it was that of the plaintiff, or of the superintendent, or of both. The plaintiff assumed the risk of his own negligence, of the negligence of the superintendent, and of the explosion of gunpowder without negligence, and the injury was caused by one of those risks. What the court there say is, that “ the injury was caused by one of the risks of the employment which the plaintiff assumed.” The object of the St. of 1887, c. 270, § 1, cl. 2, is to make the defendant liable for, and to prevent the plaintiff from assuming, one of those risks, and the one which the jury found caused his injury. This plaintiff clearly did not assume the risk of all danger from explosions of gunpowder, however caused, in the course of his employment, and the instruction given at the request of the defendant, that “ if the plaintiff, when he undertook to hold the drill in the hole, knew that it was dangerous, and continued to hold it, although he did so unwillingly, and under orders of another, he cannot recover, but must be held to have assumed the risk which he has knowingly undertaken,” was sufficiently favorable to the defendant. The risk that the defendant or his superintendent would negligently attempt to remove a charge of gunpowder by drilling into a hole that had been charged, before ascertaining that the charge had exploded, was not one of the risks of his employment which the plaintiff assumed. See Mellor v. Merchants’ Manuf. Co. 150 Mass. 362, and cases cited. The testimony of the plaintiff, that he believed there was no [168] danger after Stewart’s assurance that there was none, was competent on the question of his care. Evidence of the general reputation of Stewart as a careful workman offered by the defendant was properly excluded. The action was not on account of the negligence of the defendant in employing an incompetent superintendent or workman. It was admitted that Stewart was competent. The ground of action relied on was the negligent act of a competent superintendent, and upon that question evidence that he was generally reputed to be a careful workman in quarries was clearly incompetent. See Monahan v. Worcester, 150 Mass. 439. jExceptions overruled.