Tardiff v. Lynn Sand & Stone Co.

• Decision Date: 28 November 1934
• Citation: 288 Mass. 472,193 N.E. 55
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: TARDIFF v. LYNN SAND & STONE CO.

288 Mass. 472

193 N.E. 55

TARDIFF

v.LYNN SAND & STONE CO.

Supreme Judicial Court of Massachusetts, Essex.

Nov. 28, 1934.

Exceptions from Superior Court, Essex County; Goldberg, Judge.

Action of tort by Luke Tardiff against the Lynn Sand & Stone Company. At the trial in the Superior Court, there was a verdict for the plaintiff in the sum of $4,500, and defendant saves exceptions.

Exceptions overruled.J. W. Sullivan and F. J. Hamelin, both of Lynn, for plaintiff.

R. L. Sisk, of Lynn, for defendant.

CROSBY, Justice.

This is an action to recover for personal injuries sustained by the plaintiff while in the employ of the defendant. The case was submitted to the jury on the fourth count of the declaration which alleged, in substance, that on June 29, 1929, the defendant carried on the business of quarrying and crushing stone, and the plaintiff was in its employ; that the defendant by the use of power drills bored holes in stones and ledges and blasted stones and ledges by exploding dynamite sticks inserted in the holes; that after each such explosion and blasting it was a part of the work of the plaintiff and others to go upon the ledges and among stones on the defendant's property and drill holes in the stones after blasting the same; that it was further a part of the plaintiff's work to clean out and complete the drilling of holes that had either been incompletely drilled or not been used and had thereafter become filled with particles of stone or dust or other materials; that the defendant knew, and in the exercise of due care should have known, that the plaintiff was engaged in such work and should have provided adequate inspection of the place where the plaintiff carried on his work, especially with reference to the presence of any unexploded dynamite in such drilled holes in the rocks or ledges; that the defendant had a system of inspection of such stones and ledges with reference to explosions but it was negligently inadequate, and on June 29, 1929, while the plaintiff was at work in the manner in which the defendant had instructed him, the agent or servant of the defendant entrusted with the duty of inspecting the place in question so negligently performed his work that a quantity of dynamite was permitted by him to remain concealed by fine dust, small stone and other material in a hole in a rock without any warning being given or any care being taken by said inspector of the presence of the explosive; and that while the plaintiff in the course of his work was cleaning out and drilling further into the hole, the drill came in contact with the dynamite which exploded and the plaintiff was injured. It is further alleged in the fourth count that ‘the defendant was not a subscriber to the Workmen's Compensation Act [G. L. c. 152, § 1 et seq., as amended]. * * *’

At the close of the evidence the defendant filed a motion for a directed verdict in its favor which was denied and the defendant excepted.

It appears from the evidence that the defendant was engaged in quarrying stone out of a ledge on its premises causing it to be thrown down on to the floor of the quarry; that some of the pieces were so large that they could not be broken up in a stone crusher of a size suitable in the construction of highways for which they were intended ultimately to be used, and had to be reduced in size by other charges of dynamite. The plaintiff was a jack-hammer driller, so called, and he with five others was employed to drill holes in such pieces, and thereafter it was the duty of another employee, called a loader, to put the necessary amount of dynamite in the holes, attach a fuse and cap to the same, fill each hole with stone dust and tamp it. Nothing then would be seen except the fuse, from which it would appear whether there was dynamite in the hole or not. Then the jack-hammer driller would ignite the fuse and cause the dynamite to be exploded. This was done just before noon and just before quitting time, which was about 5 o'clock in the afternoon.

The plaintiff testified that he was twenty-six years of age, and began work for the defendant in the spring of 1928; that he worked all over the plant but did not do any drilling that year; that in 1929 he used the jack-hammer driller which made small holes approximately one inch in diameter; that the man who drilled the hole had nothing to do with the dynamite except that when the hole had been loaded and tamped he exploded the dynamite by lighting the fuse; that the day he was injured he was directed by Joel Tardiff, who represented the defendant, to clean out any holes that had been drilled and become filled with dust and chipped pieces of stone; that he found such holes the day before he was hurt and cleaned them out; that they had been drilled by some other employee-any jack-hammer driller finding such holes would clean them out; that he would find one or two such holes every day; that on the day he was hurt, after blowing the dust out of one of the holes and going down about three inches he found it was hard and ‘started to drill to make it deep enough for a stone of that size’; that he knew it was a drilled hole ‘but there was no fuse sticking out * * * the hole was filled with dust and chips of rock, but it was not filled level with the stone; that it was not filled three or four inches from the top’; that he knew he was at the end of the dirt because it was hard like a rock; that he started to drill and there was an explosion. He further testified that the loader was to blame for the accident because he was supposed to inspect the holes every night and at noon; that he could tell whether the hole had been loaded by the fuse; that there was no fuse in the hole; that if there had been it would have told him there was dynamite in the hole.

George Maso, a witness called by the defendant, testified that he was employed by the defendant, and had been so employed for the last eleven years; that he told the plaintiff that there was a rule forbidding jackhammer drillers to touch a hole that had been filled with dynamite and if he saw a hole in any stone he was not to touch it, whether there was dust...