Dean v. Smith

• Decision Date: 24 November 1897
• Parties: DEAN v. SMITH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

169 Mass. 569

48 N.E. 619

DEAN v. SMITH et al.

Supreme Judicial Court of Massachusetts, Worcester.

November 24, 1897

The declaration contained counts both at common law and under the employer's liability act. In response to a question by the court on the rendition of their verdict, the jury answered that their finding was under the employer's liability act count, which was submitted to them. The defendants were a firm of contractors building the underground conduit through the town of Berlin and elsewhere in the construction of the Metropolitan Waterworks. One of their shafts had reached the level of the conduit which consisted at that point of a tunnel running each way from the shaft. It was in this tunnel that plaintiff was injured. The injury consisted in his being hurt by an explosion, which subjected him to a severe shock, and the chief injury was the entrance of a small sharp bit of rock into one eye, which resulted in such an injury to the eye that, in the end, it had to be removed. At the conclusion of the evidence, the defendants asked the court to rule that, upon all the evidence in the case, the plaintiff was not entitled to recover. The court declined so to rule, and submitted the case to the jury, with general instructions in regard to the law, to which no exception was taken.

COUNSEL

Herbert Parker and Charles C. Milton, for plaintiff.

W.S.B Hopkins and Frank Bulkeley Smith, for defendants.

OPINION

ALLEN J.

There was evidence tending to show that McAtee was acting as superintendent in directing the work, and telling where holes were to be made; that, on the Saturday before the accident one hole, which had been loaded with dynamite, had not been fired, owing to a want of connection of the wire; that this was known to McAtee; that, on the Monday following, he directed the plaintiff to drill a new hole, which pointed towards the hole where the dynamite was; and that the explosion by which the plaintiff was hurt resulted from contact with the dynamite in drilling the new hole. This evidence tended to show that the accident occurred in consequence of the negligence of the defendants' superintendent, while he was acting in that capacity. The plaintiff testified that he knew nothing of there being dynamite in the rock; and it could not be held, as matter of law, that he assumed the risk.

There was some evidence on the part of the defense that McAtee had reason to think that this...