Neveu v. Sears

Barker, J. 1. The stones with which the plaintiff was to build the wall were furnished by the defendant from a storage ground where he was accustomed to deposit the product of his quarry in large blocks, quarried by the use of dynamite. At the place of deposit the blocks were split by hand drilling and the use of wedges, and the pieces loaded upon teams and sent to different localities, for use upon distinct contracts for work. This practice had been followed for two years, during the last two months of which only the plaintiff had been in the defendant’s employ as a mason. It did not appear at what time the [310] particular stone on which the plaintiff was at work was quarried, or when it was taken to the place of deposit, or split from the quarried block. On the day of the accident it was brought with others to the place where the plaintiff was at work, and there unloaded for use. There was no evidence that it had been quarried for the specific structure on which the plaintiff worked, and no quarrying was done while that structure was in process of construction. Whether, under these circumstances, the quarrymen at the ledge were fellow servants with the plaintiff, is a question upon which we express no opinion, and which it was not necessary for the justice presiding at the trial to decide, although rulings upon the point were requested by the defendant, for the reason that the cause of action relied on was an alleged failure of the defendant to use reasonable care to provide safe materials for the plaintiff’s work. If the defendant failed in that specific duty, it was immaterial to the case how the materials negligently furnished became dangerous. The third request, considered as a general proposition of law, was embodied in the charge, and the fourth, fifth, and sixth requests were, for the reason stated, properly refused. 2. We are of the opinion that there was evidence for the jury that the defendant failed to use reasonable care to furnish safe material for the plaintiff’s work. The jury were entitled to consider matters of common knowledge with the evidence, and to draw reasonable inferences from the 'whole. Doyle v. Boston & Albany Railroad, 145 Mass. 386. The stone which the plaintiff was about to trim was two or three feet long, eighteen inches wide, and eleven or twelve inches in thickness. The evidence tended to show that it had been recently brought with others from the storage ground, and unloaded beside the road near the wall; that it was lying flat, either upon the ground or upon other stones about ten inches from the ground; that after it was unloaded it had been turned over and a piece broken off from it by another mason, who was called as a witness, as was the teamster also who had brought and unloaded the stone, and who was only a little way off when the accident happened; that the plaintiff measured the stone, but did not turn it over to examine it, and saw no drill-hole or cartridge, and nothing wrong or peculiar about it; that he struck it one blow on the top, two [311] or three inches from the edge, when there was an explosion which demolished the stone and caused his injuries. The method used at the quarry of exploding by electricity dynamite cartridges in holes drilled in the ledge, was detailed in evidence, with the system and appliances used to ascertain whether all cartridges in the holes had been exploded, and to remove those found unexploded; and this method of removal is claimed by the defendant to be certainly effectual, if used. There was also evidence tending to show that, at times during the two years in which the defendant had worked the quarry, unexploded cartridges were found remaining in the ledge and also in quarried blocks, notwithstanding the means used to discover and remove them; and that dynamite will not explode when frozen; also that dynamite cartridges were in use in excavating the cellar of the building while the plaintiff was employed upon the walls; but the superintendent testified that he alone had charge of those cartridges, and that they were not brought there by the men who brought the stone, and his evidence tended to show that the accident was not due to the cartridges kept for use in excavating the cellar. It is not of the nature of stone to explode when struck. The accident itself established the fact that some other and explosive material was affected by the plaintiff’s blow. It was competent for the jury to find from the evidence that no explosive was placed there by the teamster, or by the other mason who handled the stone, or by the superintendent, or purposely by any one. We cannot as matter of law say that it was not a reasonable inference that a dynamite cartridge, placed in a drill-hole in the ledge in the process of quarrying, remained in the stone and was exploded by the plaintiff’s blow, nor that such was not the inference most consistent with the evidence. 3. We see no error in the instructions given to the jury, and they sufficiently cover the requests asked by the defendant, so far as those requests were correct in principle. All the things which it was necessary for the plaintiff to establish were stated, and the rules which define the defendant’s duty to the plaintiff were correctly given. The defendant must be charged with knowledge of those facts as to the use of dynamite in his quarry which he either knew or ought to have known. Gilman v. East [312] ern Railroad, 13 Allen, 433, 440. French v. Vining, 102 Mass. 132, 137. Commonwealth v. Pierce, 138 Mass. 165, 179, 180. His employment of competent quarrymen, and his furnishing them with proper means of preventing any dangers consequent upon the use of dynamite, would not justify him in relying upon an actual want of knowledge that there had been carelessness at the quarry as an excuse for furnishing a dangerous stone for the plaintiff’s use, if, knowing all that had happened at the quarry, he would then have had reason to believe that unexploded cartridges might remain in the blocks removed to the storage ground, and in the stones split from them. The jury could not have understood the instructions to mean, as is now contended by the defendant, that he was at all events bound to examine the stone for dynamite at the time it was loaded upon the wagon, or first appropriated to the work on which the plaintiff was engaged. They were left to say whether or not there was need of such an examination, upon the knowledge which the defendant had or ought to have had of what occurred at the quarry, and were instructed to hold the defendant only to such care as an ordinarily prudent man, with such knowledge, ought to use with reference to stones coming from such a quarry; and they were told in substance that the defendant was not to be held responsible for the consequences of the carelessness of his quarrymen, unless, in the exercise of proper care over his business, he had reason to believe that the system which he had adopted at the quarry had been carelessly managed. As the rulings of the court were correct, by the terms of the report the verdict is to stand. Judgment on the verdict.