Sakas v. Lumsden & Van Stone Co.

Sheldon, J. If we assume that Charles Paul was or could be found to be entrusted by the defendant with and exercising superintendence and having that for his sole or principal duty, or at least to be a person acting as superintendent with the authority and consent of the defendant in the absence of the regular superintendent, within the meaning of R. L. c. 106, § 71, cl. 2, now contained in St. 1909, c. 514, § 127, cl. 2, we are yet of opinion that the plaintiff was not entitled to maintain his action, upon his contention (which was the only ground submitted to the jury) that his injury was due to the negligence of Paul. His injury was due to the fact that his clothes caught fire by reason of the heat radiating from a pot or crucible of molten brass, which under the order of Paul he was assisting another man to lift and empty. He had just before done the same thing with another like crucible; and it could be found that the previous exposure of his garments to the greatheat (some two thousand degrees Fahrenheit) radiating therefrom rendered it more dangerous to subject them again to the same ordeal, and that for this reason it was customary that the same man should not lift and carry two.such pots or crucibles in succession. But the effects of exposure to excessive temperatures are within the common knowledge of mankind. No grown man of ordinary intelligence could be heard to say, for example, that he was ignorant of the result of putting a slice of beef upon a gridiron immediately over an aperture in the top of a heated range, or of placing a combustible substance in close proximity to any matter heated to such a temperature as is here in question. And it is equally a matter of common knowledge that the [431] effect of additional exposures immediately succeeding each other will much enhance the result thereof in parching, burning and setting on fire any combustible substance thus exposed. In this very case, the judge correctly ruled that the plaintiff must be taken to have appreciated and assumed the risk of his clothes taking fire from handling such a crucible. But he allowed the jury to find that there was such an added, increased danger in lifting a second crucible as to constitute a separate and distinct danger, which the plaintiff could not reasonably foresee under the circumstances, but which one charged with the duty of superintendence ought to have foreseen. But all the evidence was that it was no uncommon thing for the men to become burned in handling these crucibles; and we can see no ground for saying that (to use arbitrary figures) a workman must be deemed to appreciate and assume the risk of exposure to the enormous heat for five minutes, but that an exposure to the same heat for double that time involved a danger which was of a distinct character, which was not obvious and which he properly might require to have explained to him. Each risk is of the same character; it is no more necessary to give warning against the one than against the other. The case comes within the same principles that were applied in Cunningham v. Blake & Knowles Steam Pump Works, 208 Mass. 68, 70; Boisvert v. Ward, 199 Mass. 594; and Whalen v. Rosnosky, 195 Mass. 545. Indeed the plaintiff did not testify, nor do we find any other evidence tending to show, that he did not appreciate the danger of a further exposure to heat from a second crucible as well as that of the first exposure. The plaintiff testified that while he and another were holding up the second crucible to knock off clinkers from its bottom, his clothes began to smoke, and he said, “I am burning,” but that Paul answered, “Never mind, hold up.” He testified also that Paul, as soon as he saw the fire, told the plaintiff to let it down. This first mentioned order cannot be said to have been negligently given. McHugh, a witness for the plaintiff, testified, and it appears to have been undisputed, that to put down the crucible with clinkers on the bottom would have been more dangerous than to hold it up, from the risk of its turning over and causing an explosion; that the clinkers must be knocked off before.it could be set down. [432] We find no evidence of negligence for which the defendant was responsible; and the order must be Exceptions sustained.