Cogliano v. Ferguson
| Decision Date | 13 September 1917 |
| Citation | 228 Mass. 147 |
| Parties | PATRICK COGLIANO v. JAMES H. FERGUSON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
January 12, 1917.
Present: RUGG, C J., LORING, BRALEY, DE COURCY, & CARROLL, JJ.
Statute Exterritorial effect. Conflict of Law & Workmen's Compensation Act. Negligence, Employer's liability Explosion of dynamite. Explosives. Dynamite. Evidence Presumptions and burden of proof.
The provisions of St. 1911, c. 751, Part I, Section 1, doing away with certain defences in actions for personal injuries sustained by employees in the course of their employment, have no application to personal injuries received by an employee outside this Commonwealth.
In an action for personal injuries sustained in the State of Maine while in the employ of the defendant by reason of the explosion of a charge of dynamite that had been left unexploded in a blasting, it appeared that the plaintiff was employed by the defendant, who was a contractor, as the boss in general charge of the work of constructing a slow sand filter for a water district, but that he had nothing to do with blasting which was in charge of another employee of the defendant. The plaintiff testified that he had no special knowledge of blasting and did not know that it was a frequent occurrence for charges of dynamite to fail to explode and that consequently after each blast careful inspection was necessary to see whether every charge was exploded. Held, that, if the plaintiff was ignorant of any danger arising from an unexploded charge of dynamite, he did not assume the risk of such a hidden danger, and that, being ignorant of the danger, he could not have been lacking in due care in failing to avoid it.
In the same case it was said that, if an employer conducting work in which blasting is necessary chooses to put the blasting in charge of one man and to make another man the boss of every part of the work except the blasting, there is no necessary presumption as matter of law that the general boss knows the peculiar and concealed dangers incident to blasting.
In the same case it was held that the defendant might have been found wanting in the performance of his duty to furnish a place free from hidden and unknown dangers in putting an employee, even a boss, at work on a ledge where such a secret peril might be lurking after every large blast without giving him warning in this regard.
In the same case it was said that the defendant personally took part in directing the work frequently enough to be held responsible for the method of its conduct, and that, if it was necessary for the safety of the workmen that there should be a rigid system compelling an inspection after the firing of each blast, and there was no inspection, the defendant might have been found negligent in failing to provide inspection.
TORT for personal injuries sustained on December 11, 1914, when the plaintiff was in the employ of the defendant at Gardiner in the State of Maine, by reason of an explosion of dynamite. Writ dated April 12, 1915.
The plaintiff's declaration contained seven counts, but the plaintiff waived all except the first, second and fifth. The first count alleged that the defendant negligently put the plaintiff at work in an unsafe place; the second count alleged that the defendant negligently failed to warn the plaintiff of dangers of which the defendant had knowledge and the plaintiff did not; and the fifth count alleged that the defendant negligently failed to inspect a certain blast after it had been fired, in consequence of which the plaintiff was injured.
The answer contained a general denial and alleged lack of due care on the part of the plaintiff and assumption of risk by him.
In the Superior Court the case was tried before Chase, J. The following facts were not in dispute at the trial. In the autumn and winter of 1914 the defendant was doing the excavation and other work in connection with the construction of a slow sand filter for the Gardiner water district. At first dirt and boulders were excavated, and early in November operations had been begun upon a ledge on the premises, necessitating a good deal of blasting. Before this there was some blasting of small boulders, but, after work on the ledge itself began, there was blasting regularly -- one or two blasts every day. There were roughly twenty men engaged on the work, laborers, teamsters, a blacksmith and the man who ran the boiler. The day before the accident there had been a failure of some of the holes to explode, but finally the blast was fired. The following day the men were removing the broken pieces of stone. One of these stones, in size about six or seven feet long and four feet through, was difficult to move. One Miller had a pair of horses attached to this stone with a chain and was endeavoring to move it, and one Luciano and the plaintiff were assisting him by using an iron bar on the stone, when there was a sudden explosion, causing the injuries for which this action was brought. The testimony of the plaintiff and that of the defendant and the nature of the accident are described in the opinion.
At the close of the evidence the defendant asked the judge to make the following rulings:
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