Mooney v. Beattie

• Decision Date: 27 February 1902
• Citation: 180 Mass. 451,62 N.E. 725
• Parties: MOONEY v. BEATTIE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

180 Mass. 451

62 N.E. 725

MOONEY v. BEATTIE.

Supreme Judicial Court of Massachusetts, Bristol.

February 27, 1902

COUNSEL

J. W. & C. R. Cummings, for plaintiff.

Jackson Slade & Borden, for defendant.

OPINION

HAMMOND J.

This is an action at common law to recover compensation for injuries received by the plaintiff while in the employ of the defendants, who were contractors and builders, engaged, at the time of the accident, in the construction of a mill. The plaintiff had been a mason for 30 years, and while at work laying the foundation of the mill, and in the exercise of due care, was injured by the explosion of a stone. The evidence tended to show that the stone was being transferred by the defendants' servant, a mason's tender, from the wagon in which it had been brought to the premises to the place where it was to be used in building the wall, and that in the course of his employment the men threw it to the ground so that it struck near the plaintiff, at work in a shallow trench, and exploded. The cause of the explosion was dynamite, which remained in the stone after it had been blasted from its bed in the quarry. The stone had been purchased in due course of business by the defendants of the quarrymen. There is very little dispute as to facts. The defendants made no inspection of the stone, and the main question is whether, under the circumstances of the case this failure to inspect will warrant a finding that they were negligent in their duty to the plaintiff to use reasonable care in the selection of suitable materials for the work. It appeared at the trial that the quarrymen from whom these stones were bought by the defendants used both powder and dynamite for blasting, and that, where such explosives are used, sometimes (but rarely) a cartridge in a series fails to explode; and the uniform testimony was that an inspection should be made after every blast, and before the stones are handled, to ascertain whether there is any unexploded cartridge; and that it was the practice to make that inspection after every blast, both for the safety of the men who are to handle the stones in the quarry and because it can best be done by the men who know the depth to which the holes are drilled, and therefore can easily ascertain whether there is anything left therein. One Sullivan, called for the plaintiff, testified that he had been a stone mason for about 25 years, and, on cross-examination, that he had worked upon a great many buildings where stone had been used, and had never known a stone to explode after it had been brought to the place where the building was to be erected, and that he had 'never known a stone to be inspected at the place where the building was being put up to see whether or not there was dynamite in it.' McMahon, another witness for the plaintiff, said that he had been a mason 22 years, and had known of the explosion of the stone only. Harrington, an expert quarryman, also called by the plaintiff, testified that he had been in the business 40 years,--30 years as foreman,--and that he never knew of stones exploding because...