Roberts v. Frank's Inc.

• Decision Date: 25 May 1943
• Parties: JAMES ROBERTS v. FRANK'S INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

314 Mass. 42

49 N.E.2d 427

JAMES ROBERTS v. FRANK'S INC.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1943

January 4, 1943.

Present: FIELD, C.

J., DONAHUE LUMMUS, DOLAN, & COX, JJ.

Negligence Employer's liability: appliance, assumption of risk. Proximate Cause.

Evidence warranted findings that an employer, not a subscriber under the workmen's compensation act, was negligent with respect to an oil burner on his premises, the switch to which was turned on when the burner was so out of order that the oil vapor did not ignite during operation and the unburned oil vapor prevented from escaping up the chimney by an accumulation of soot, exploded from the heat or flame of another burner in operation and injured an employee; and that the employer's negligence was the proximate cause of such injuries.

It could not properly have been ruled that an employee of one not a subscriber under the workmen's compensation act "contractually" assumed the risk of injury resulting from an explosion in an oil burner on the employer's premises where the conditions leading to the explosion arose after his employment began.

TORT. Writ in the Municipal Court of the City of Boston dated April 12, 1940.

Upon removal to the Superior Court, the action was tried before Swift, J.

E. M. Dangel, (L.

E. Sherry & S.

Marshall with him,) for the defendant.

M. Michelson, for the plaintiff.

DOLAN, J. This is an action of tort to recover for personal injuries sustained by the plaintiff while in the employ of the defendant, which was not a subscriber under the workmen's compensation act. At the close of the evidence the defendant moved for a directed verdict in its favor. The motion was denied, subject to the defendant's exception, and the jury returned a verdict for the plaintiff.

The jury would have been warranted in finding the following facts: On November 18, 1939, the defendant was operating a garage in which the plaintiff was employed as a night watchman. He also sold gasoline and oil and parked and washed automobiles. He had been employed by the defendant for a year to a year and a half prior to the date just mentioned, and his hours of work were from 7 P.M. to 7 A.M. There were two oil burners in the cellar of the garage, "a little one and a big one." There was an individual switch for each burner in the cellar and in the office upstairs there was a single main switch for both burners. In order to operate either burner, the individual switch thereto and the main switch in the office would have to be on. The big burner had not been in actual use since the previous winter. In that winter it worked all right when first put in operation, but toward the end of the winter it did not work well and had not been repaired. The plaintiff's "boss" told him not to use it because it had to be fixed, and he did not use it intentionally. The small burner had been in use for two weeks before the accident and also on the day of the accident. It heated the office and supplied hot water when in operation. The switch for the small burner was always on. The method of starting the small burner was to throw the switch in the office. That "was the way it was done ordinarily, everybody did it that way," and this method was in accordance with the instructions given to the plaintiff. On the morning of the day in question, when the plaintiff ceased working, the switch for the big burner was off as usual. When he returned to work in the evening the switch in the office was off and neither burner was in operation. During the course of the evening a boy who was washing trucks wanted some hot water. The plaintiff put the switch in the office on, and twenty to twenty-five minutes later he heard a noise coming from the furnace room and noticed that the door to the cellar, which led from the outside of the garage, was shaking and rattling. This door was kept locked, and in order to go into the cellar it was necessary to go outside the garage and through this door. The purpose of the switch in the office was to avoid this inconvenience.

Nobody "had access to the cellar except employees of the defendant." The plaintiff took the key to the cellar door, unlocked it and found that the motors of both burners were in operation. The small burner was ignited, but the big burner was cold and had not been ignited. This was the first time since the preceding winter that he had found the motors of both burners in operation. He stepped over to the big burner to throw off the switch, but before he could reach it an explosion came from this burner and "blew him first ten feet in one direction and then about fifteen feet to the stairway." He was covered with soot, his clothes were on fire, and he was burned on his face, hands and neck. There was soot "all over the place; in addition to the soot that was left in the flue . . . there was sufficient soot around . . . [the boiler room] to lead" the chief of the fire department "to form an opinion as to how much soot there had been in the flue and in the chimney . . . that there was considerable soot, and that is evidence of poor maintenance."

There was evidence that if the switch of the big burner was on and the switch in the office was pulled on, "that started the motor drawing up the oil and vaporizing it into the pit and then you had to light it"; that, if the big burner was running twenty...