Redmund v. Butler

Morton, J. Though the plaintiff had been at work for the defendants’ testator three or four months before the accident in the same room where he was injured, it does not appear that he had been set at any time to melting dross, or that his attention had been called by anything which had happened to anybody else to the danger of putting damp lead into molten lead; and we cannot say that the risk arising from doing so was of such an obvious character and so well known that he must be held to have known of and understood it, and therefore to have assumed it. There was testimony on the part of the defendants that the plaintiff had been warned of the danger likely to arise from anything damp coming in contact with molten lead. The plaintiff, however, denied that he had ever received .any such warning. On this point, therefore, there was evidence for the jury. There was testimony from one Pyne, who was the senior workman in the room where the plaintiff was working, and who had been directed to set the plaintiff at work melting dross, “ that he instructed the plaintiff to pour the dross slowly from the kegs into the box, and from the box into the kettle, and in such case to spread his hands out over the dross as it was running from one receptacle into the other.” And the defendants introduced evidence tending to show that, instead of doing this, “ the plaintiff poured the dross from the box at the moment of the explosion all at once, in a lump, and not slowly.” “ This,” the exceptions state, “ was not contradicted by the plaintiff, nor did he testify in denial of Pyne with reference to the instructions as to pouring slowly, and spreading his hands over the dross, but he denied that any warning whatever was ever given him, and testified that he poured the dross in the manner he was in [370] structed to.” This might have been taken to mean, either that he poured the dross as Pyne testified that he told him to, and as importing a denial therefore that he.poured it all at once, or that Pyne told him to pour it all at once, and he did so, or that, whatever the instructions were as to the manner of pouring, he followed them. The jury might also have found, as the fair result of the testimony, that Pyne told him to pour as he said he did, but that the plaintiff poured it “ all at once, in a lump,” in which ease we do not think that he would have been entitled to recover. Apparently this was the view taken by the judge who tried the case. But we cannot say that the jury might not have taken one of the other views which we have indicated, and if they did we cannot say that there was not evidence of negligence on the part of the defendants’ testator and of those standing in his place in furnishing him with damp dross to be put into the kettle of molten lead, and in failing to warn him of the danger to be expected therefrom. We think, therefore, that the exceptions must be sustained, and it is so ordered. Exceptions sustained.