Marana v. McDonough
| Court | United States State Supreme Judicial Court of Massachusetts |
| Writing for the Court | SHELDON |
| Citation | 212 Mass. 189,98 N.E. 689 |
| Parties | MARANA v. McDONOUGH. |
| Decision Date | 25 May 1912 |
212 Mass. 189
98 N.E. 689
MARANA
v.
McDONOUGH.
Supreme Judicial Court of Massachusetts, Suffolk.
May 25, 1912.
Report from Superior Court, Suffolk County; John F. Brown, Judge.
Action by Carmela Marana against Michael McDonough. Verdict was directed for defendant, and the case was reported. Exceptions sustained, and judgment ordered for plaintiff.
[212 Mass. 190]
W. P. Murray, of Boston, for plaintiff.
John Lowell and James A. Lowell, both of Boston, for defendant.
SHELDON, J.
[1] The plaintiff's husband was killed in consequence of being hit by a piece of stone thrown from a blast in a ledge of rock. This was a characteristic danger of his employment; and if nothing more appeared it would have to be held that he had assumed the risk of what happened, and that no action could be maintained therefor against his employer. Chisholm v. New Eng. Tel. & Tel. Co., 176 Mass. 125, 127, 128, 57 N. E. 383.
[2] But while the evidence was conflicting and certainly would have warranted findings favorable to the defendant's contentions, it yet could have been found that the accident was due to the negligence of the defendant's superintendent in placing the battery which was to set off the charge too near the hole in which the charge had been put. Apparently sufficient wire had been provided to allow the battery to be placed at a safe distance from the charges which were to be exploded; but it could be found that by reason of the melting of the end of the wire, or its being cut by sharp edges of rock, the wire became shorter as it was used in successive explosions. When this accident happened, as could be found, the wire had been shortened in this way from more than 200 to less than 100 feet in length, which brought the battery so much nearer the place of the explosion and thus increased the danger from flying stones. Other wire was at hand, and the shortened wire need not have been used. Even without the testimony of Seretto, it could be found that the superintendent was negligent in using so short a wire and thereby exposing Marana to greater injury. The risk of such negligence of a superintendent, [212 Mass. 191]though merely increasing a risk of the employment, is not assumed by a servant. Malcolm v. Fuller, 152 Mass. 160, 25 N. E. 83;Davis v. N. Y., N. H. & H. R. R., 159 Mass. 532, 536, 34 N. E. 1070.
[3] While there was evidence that Marana was himself a skilled blaster, fully able to appreciate the increased risk to which he was exposed by the...
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...and Arthur [212 Mass. 97]T. Smith, all of Boston, for plaintiff.Frank W. Knowlton and Roger B. Hull, both of Boston, for defendant. [98 N.E. 689]BRALEY, J. The injuries to the plaintiff's intestate which resulted in his death after a period of conscious suffering, were caused by the explosi......
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...749;Milliken v. Hathaway, 148 Mass. 69, 19 N. E. 16,1 L. R. A. 510), or whether the ring, even if not in the immediate possession of the [212 Mass. 189]defendant, was yet not within its full control, as the statement of its president testified to by the plaintiff indicated. [8] The instruct......
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Cogliano v. Ferguson
...342,Hooe v. Boston & Northern St. Ry., 187 Mass. 67, 72 N. E. 341,Byrne v. Farnum, 188 Mass. 219, 74 N. E. 1131, and Marana v. McDonough, 212 Mass. 189, 98 N. E. 689. [228 Mass. 152]The testimony of the plaintiff as to his state of ignorance of this risk, whatever its weight may seem to be,......
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Kendrick v. Lynn Sand & Stone Co.
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Jacobs v. New York, N.H.&H.R. Co.
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Wright v. Frank A. Andrews Co.
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Cogliano v. Ferguson
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