Marana v. McDonough

Sheldon, J. The plaintiff’s husband was killed in consequence of being hit by a piece of stone thrown from a blast in a ledge of rock. This was a characteristic danger of his employment; and if nothing more appeared it would have to be held that he had assumed the risk of what happened, and that no action could be maintained therefor against his employer. Chisholm v. New England Telephone & Telegraph Co. 176 Mass. 125, 127, 128. But while the evidence was conflicting and certainly would have warranted findings favorable to the defendant’s contentions, it yet could have been found that the accident was due to the negligence of the defendant’s superintendent in placing the battery which was to set off the charge too near the hole in which the charge had been put. Apparently sufficient wire had been provided to allow the battery to be placed at a safe distance from the charges which were to be exploded; but it could be found that by reason of the melting of the end of the wire, or its being cut by sharp edges of rock, the wire became shorter as it was used in successive explosions. When this accident happened, as could be found, the wire had been shortened in this way from more than two hundred to less than one hundred feet in length, which brought the battery so much nearer the place of the explosion and thus increased the danger from flying stones. Other wire was at hand, and the shortened wire need not have been used. Even without the testimony of Seretto, it could be found that the superintendent was negligent in using so short a wire and thereby exposing Maraña to greater injury. The risk of such negligence of a superintendent, [191] though merely increasing a risk of the employment, is not assumed by a servant. Malcolm, v. Fuller, 152 Mass. 160. Davis v. New York, New Haven, & Hartford Railroad, 159 Mass. 532, 536. While there was evidence that Maraña was himself a skilled blaster, fully able to appreciate the increased risk to which he was exposed by the altered position of the battery, there was also evidence that he was merely a common laborer, who might have been justified in relying on the skill and judgment of his superior whose orders he was bound to obey. It cannot be said as matter of law that he was not in the exercise of due care, whatever the weight of the evidence may seem to us to have been. There was evidence that both Rotondo and Connolly were superintendents within the meaning of R. L. c. 106, §§ 71, 73; St. 1909, c. 514, §§ 127, 129. The issues should have been submitted to the jury; and under the terms of the report judgment must be entered for the plaintiff in the sum of $1,000. So ordered.