Hopkins v. O'leary

• Decision Date: 23 May 1900
• Citation: 57 N.E. 342,176 Mass. 258
• Parties: HOPKINS v. O'LEARY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

176 Mass. 258

57 N.E. 342

HOPKINS v. O'LEARY.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1900

COUNSEL

M. J. Creed, J. P. Crosby, and W. A. Buie, for plaintiff.

Geo. W Buck, for defendant.

OPINION

KNOWLTON J.

The plaintiff was injured by an explosion of dynamite in a trench where he was working at shoveling and picking. He had good reason to believe that the place where he was working was safe, and there is no ground for a contention that he was not in the exercise of due care. A series of holes had been drilled in the rock which the defendant was excavating, and they had been charged with dynamite, and exploded by a battery. The evidence tended to show that the dynamite in one of the holes failed to explode and that a companion of the plaintiff, who was afterwards set to work there, struck it with his pick, and caused an explosion. There was evidence tending to show that the defendant knew, or ought to have known, that when a charge is set off the dynamite in one or more of the holes sometimes fails to explode, and the jury might have found that it was his duty carefully to inspect the holes, or cause them to be inspected, before setting laborers to work there shoveling and picking after a blast. There was evidence to warrant a finding that through the negligence of the defendant, or of some one representing him, no sufficient or proper inspection was made. The plaintiff testified that at half past 9 o'clock on the day of the accident, which occurred at about half past 2 o'clock, the defendant told him to go to work in this place, and that everything was all right. The general duty to provide a place for the plaintiff which was reasonably safe, having reference to the kind of business in which the defendant was engaged, was so far personal to himself as a master that he could not escape responsibility by delegating it to another. Toy v. Cartridge Co., 159 Mass. 313, 34 N.E. 461. While the plaintiff assumed the obvious risks of the business, he did not assume the risk from the failure of the defendant, either personally or through a superintendent, to perform the ordinary duties of an employer in providing against unnecessary or concealed dangers where laborers were set to work. The jury were rightly permitted to pass upon the question whether the defendant was negligent in this particular. Coan v. City of Marlborough, 164 Mass. 206, 41 N.E. 238; Neveu v. Sears, 155 Mass. 303,...