Lyons v. Boston Towage & Lighterage Co.

• Decision Date: 28 February 1895
• Citation: 163 Mass. 158,39 N.E. 800
• Parties: LYONS v. BOSTON TOWAGE & LIGHTERAGE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 158

39 N.E. 800

LYONS v. BOSTON TOWAGE & LIGHTERAGE CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1895

COUNSEL

Linus M. Child, for plaintiff.

John Lowell, Jr., and Samuel H. Smith, for defendant.

OPINION

HOLMES, J.

The plaintiff's intestate, Michael Lyons, was ordered to paint the inside of a tank with black varnish. While he was doing so, and a fellow workman was holding a torch for him, at his suggestion, the fumes of the varnish caught fire from the torch, and he was burned so badly that he died. Lyons had worked for the defendant 12 years. It was part of his regular business to paint this and other tanks, and he had done so a good many times. Black varnish was the paint used. The tank had to be painted about once a year.

We assume that black varnish is dangerous, in the sense that it is liable to generate inflammable fumes, but any dangers incident to the use of black varnish in general the defendant had every reason to believe to be as well known to Lyons as to itself. After 12 years he would be supposed to have taken the risk of them. There was no evidence that the varnish used on this occasion was of inferior quality, or different from what had always been used, except the fact of the accident. There was no evidence that the defendant knew of the difference, if there was any. There was no evidence that it contemplated the use of a torch, which came from Lyon's own suggestion. We do not perceive any particular in which the defendant fairly can be said to have failed in its duty.

Exceptions overruled.