Perry v. Smith

• Decision Date: 09 May 1892
• Citation: 156 Mass. 340,31 N.E. 9
• Parties: PERRY v. SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 340

31 N.E. 9

PERRY v. SMITH.

Supreme Judicial Court of Massachusetts, Suffolk.

May 9, 1892

At the trial it appeared that the plaintiff kept a shop on Summer street in Boston, from which he furnished electric light for lighting stores in the vicinity, and that the defendant was a plumber, to whom the plaintiff had sent an order for a man to make repairs in his shop; that the defendant sent his workman to plaintiff's shop, which was then in charge of one Morse; that neither of the parties to the suit were present when the fire hereinafter mentioned took place; that the defendant's workman was informed by Morse what repairs were desired,--being to fix a lead pipe to one of the bearings, so that it could be oiled from the outside of the box; that the place where the repairs were to be made was inside a shafting box, made of pine or spruce wood, lined with felting tacked on its inside, both wood and felting being saturated with oil, which had accumulated there from its use on the machinery inside the box. The inside of the box was somewhat dark, and the workman asked for a lamp. Morse procured one,--a small, tin lamp, with no chimney, and filled with lard oil. Within a few minutes after Morse left the room, fire was discovered inside the box by the workman, who called Morse from another room, and they both tried to extinguish it. The fire spread, and did the damage complained of. Morse was familiar with the box and its conditions, but did not caution the workman, who was not familiar with it.

COUNSEL

Wm. A. Knowlton, for plaintiff.

James L. Powers, for defendant.

OPINION

HOLMES, J.

The plaintiff's case was that the defendant's workman took the lamp into the shafting box where he had to mend the pipe, and that he knew that the box was soaked with oil. The jury were warranted in finding these to be the facts. If they did so, we cannot say that they were not warranted in finding that a plumber who knew his business would not set fire to the box unless he was careless. On the other hand, we cannot say that the plaintiff was not warranted in assuming that the condition of the box was obvious, and would be noticed by the workman, and that the workman was aware that oil is easily ignited by flame.

Exceptions overruled.