Kendrick v. Lynn Sand & Stone Co.

• Decision Date: 28 February 1945
• Citation: 317 Mass. 737,59 N.E.2d 702
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: WILLIAM A. KENDRICK v. LYNN SAND & STONE COMPANY.

317 Mass. 737

59 N.E.2d 702

WILLIAM A. KENDRICK v. LYNN SAND & STONE COMPANY.

Supreme Judicial Court of Massachusetts, Essex.

February 28, 1945

December 6, 1944.

Present: FIELD, C.

J., QUA, DOLAN RONAN, & WILKINS, JJ.

Negligence Employer's liability: quarry, explosives, assumption of risk.

Evidence, at the trial of an action by an employee against his employer operating a quarry and not insured under the workmen's compensation act, for personal injuries sustained when in 1937 the plaintiff, while running away from a blast, was struck by a piece of stone thrown five hundred sixty-five feet by the blast, warranted findings that the plaintiff had not "contractually" assumed the risk of the injury and that the defendant had been negligent in failing to furnish him "ample protection" from rock thrown by the blast.

TORT. Writ in the Superior Court dated November 4, 1937. The case was tried before Buttrick, J.

K. C. Parker, for the plaintiff. R. L. Sisk, for the defendant.

QUA, J. 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 . Cronan v Armitage, 285 Mass. 520. Greem v. Cohen, 298 Mass. 439 , 444. Enga v. Sparks, 315 Mass. 120, 125. See now, however, G. L. (Ter. Ed.) c. 152, Section 66, as appearing in St. 1943, c. 529, Section 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 eighty to one hundred 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 eight hundred 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 required number 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 five hundred sixty-five 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 three hundred 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...