Green v. E. D. Smith

Allen, J. There was some evidence for the jury, that the defendants’ superintendent, while exercising superintendence, directed dynamite to be put into a hole while the rock was heated from the effect of a recent explosion; that under such circumstances an explosion was likely or liable to occur; and that the explosion which followed and caused the death of the plaintiff’s husband was the result of negligence on the part of [492] the superintendent in thus directing the dynamite to be put in before the rock had become cool. Under the circumstances of the present case, it was for the jury to determine whether the superintendent was exercising superintendence; and in this respect the case is to be distinguished from Whittaker v. Bent, 167 Mass. 588. There was also evidence from which the jury might infer that the plaintiff’s husband died without conscious suffering. The small size of that portion of the tunnel where the accident occurred, the force of the explosion as shown by its effect, the proximity of the deceased, the distance to which he and the other men were thrown, and the injuries found upon his body, supplemented by the evidence of the doctors, might'lead the jury to be reasonably satisfied that the deceased was at once deprived of consciousness, and that he did not regain it, even though he may have breathed and groaned afterwards. The testimony as to these last matters may not have been accepted by the jury as absolutely accurate. The way in which the deceased was cared for by those who were rendering assistance at the time might be thought to indicate that they saw in him no signs of consciousness. We cannot say that there was no evidence for the jury on the above points; and the other objections taken by the defendants were not insisted on at the argument. Exceptions overruled.