Kendrick v. Lynn Sand & Stone Co.

Decision Date28 February 1945
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesKENDRICK v. LYNN SAND & STONE CO.

OPINION TEXT STARTS HERE

Report from Superior Court, Essex County; Buttrick, Judge.

Action by William A. Kendrick against the Lynn Sand & Stone Company for personal injuries caused by a piece of rock flying from a dynamite blast while plaintiff was working as an employee of defendant at its quarry. After a jury's verdict for plaintiff, the trial judge entered a verdict for defendant on leave reserved and reported the case.

Verdict entered on leave reserved set aside, and entry of judgment for plaintiff on jury's verdict ordered.

Before FIELD, C. J., and QUA, DOLAN, RONAN, and WILKINS, JJ.

K. C. Parker, of Boston, for plaintiff.

R. L. Sisk, of Lynn, for defendant.

QUA, Justice.

On August 13, 1937, the plaintiff, while at work as an employee of the defendant at its quarry in Swampscott, was struck in the head and severely injured by a piece of rock flying from a blast. After a verdict for the plaintiff, the judge entered a verdict for the defendant on leave reserved and reported the case.

The defendant was not insured under the workmen's compensation law. The issue at the trial therefore was whether the injury was proximately caused by any negligence of the defendant, its agents or servants, and this depended in part upon whether the plaintiff contractually assumed the risk. Sylvain v. Boston & Maine Railroad, 280 Mass. 503, 182 N.E. 835;Cronan v. Armitage, 285 Mass. 520, 190 N.E. 12;Greem v. Cohen, 298 Mass. 439, 444, 11 N.E.2d 492;Enga v. Sparks, 315 Mass. 120, 125, 51 N.E.2d 984. See now, however, G.L.(Ter.Ed.) c. 152, § 66, as appearing in St.1943, c. 529, § 9A.

The quarry seems to have been a large one located in the side of a hill. It was oval in shape, surrounded on ‘three sides' by a ‘face’ or ‘cliff’ which could be found to have been from 80 to 100 feet in height, and it was possible to run toward or out of the entrance to the quarry when a blast was fired. At the time of the injury to the plaintiff a section of the ‘face’ had been blasted out which could be found to have been opposite the entrance to the quarry and about 800 feet distant therefrom. This left a large amount of rough and broken stone of various sizes heaped upon the quarry floor in front of the ‘face.’ It then became necessary to drill and blast the larger stones. This was done by so-called ‘pop hole’ blasting. When the requirednumber of holes (in this instance one hundred eleven, as the jury could find) had been drilled and the dynamite had been inserted by the ‘dynamite man,’ it became the duty of the plaintiff and ten or eleven other ‘lighters' to light the fuses and then to run before the ‘pop hole’ blasts exploded. The plaintiff ran toward the entrance of the quarry and was struck when he had reached a point 565 feet from the source of the blasts.

There was evidence that in running as he did the plaintiff was doing what he had been told by the foreman and by the ‘dynamite man’ that it was proper for him to do; that all the ‘lighters' habitually did the same and did so on this occasion; that it was unusual but not impossible for stones to fly as far as the stone did in this instance; that stones would not fly over 300 feet from a ‘pop hole’ blast unless the hole was overloaded with dynamite; that the plaintiff and others who worked with him as ‘lighters' had never seen stones fly so far as did the stone that struck the plaintiff; and that the plaintiff, who had worked in the quarry about three months, ‘had no idea’ that he might be hit. The evidence need not be stated in further detail. Some of it was conflicting, and some of the plaintiff's testimony as to his lack of knowledge of danger was weakened on cross-examination, but he was entitled to have the jury pass upon it. It seems plain that the jury could find that the danger of being hit by a stone from a ‘pop hole’ blast at a distance of 565 feet was not an obvious risk of the work which the plaintiff impliedly agreed to assume when he undertook the employment (Engel v. Boston Ice Co., 295 Mass. 428, 432, 4 N.E.2d 455;Doherty v. Paul's for Tires, Inc., 314 Mass. 83,...

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