McCabe v. Shields

Hammond, J. The accident occurred since the passage of St. 1894, c. 499. There being no question of variance raised in the case, it was sufficient, on the question of superintendence, for the plaintiff to show that Hannon, when neither defendant was present, was acting as superintendent with the authority and consent of the defendants; and we think the evidence sufficient to warrant a verdict for the plaintiff that he was thus acting, in the directions which he gave to the plaintiff, with reference to the work which the plaintiff was doing at thé' time of the accident. There was evidence tending to show that the presence of rust in the riser, or on the surface of the space in the mould around the riser, would be adequate to cause the accident if the molten iron came in contact with it, and further, that the quantity of rust which would adhere to the sand in the mould, in perforating it with such an instrument as Hannon used, would be sufficient in quantity, if brought in contact with the molten metal, to cause such an explosion as occurred, and some experts testified that the accident could be ascribed to no other cause under the circumstances stated in the plaintiff’s evidence. The jury might properly find that Hannon perforated the mould with a rusty instrument and that rust from it adhered to the riser, causing, in connection with the molten metal, the accident. Without deciding whether the act of perforation was of itself one of superintendence, we think that when Hannon placed this mould thus perforated into the hands of the plaintiff and directed him to use it, he was acting as superintendent, and that the jury [447] might properly find that it xvas negligent in him, as such superintendent, to place this dangerous mould in the hands of the plaintiff. Malcolm v. Fuller, 152 Mass. 160. Dean v. Smith, 169 Mass. 569. O'Brien v. Look, 171 Mass. 36,41. Riouv. Rockport Granite Co. 171 Mass. 162, and cases there cited. The questions whether the plaintiff was in the exercise of due care, and whether the accident happened as the plaintiff claimed it did, were properly submitted to the jury upon the evidence. The answer of Cleary, as to the acts of Hannon in putting people out of the shop and his language at the time he did it, was admissible as bearing upon the conduct of Hannon in the shop in matters of control. Exceptions overruled.