Thompson v. National Fireworks Co.

• Decision Date: 14 May 1907
• Citation: 195 Mass. 327,81 N.E. 256
• Parties: THOMPSON v. NATIONAL FIREWORKS CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

195 Mass. 327

81 N.E. 256

THOMPSON v. NATIONAL FIREWORKS CO.

Supreme Judicial Court of Massachusetts, Plymouth.

May 14, 1907

COUNSEL

Frederick P. Cabot, for plaintiff.

William J. & Daniel R. Coughlan, for defendant.

OPINION

MORTON J.

We assume in the plaintiff's favor that the evidence warranted a finding that her intestate was in the exercise of due care. We also take it for granted that the evidence warranted a finding that the defendant did not instruct him as fully as it should have done, and that, therefore, he did not assume the risk arising from the danger of an explosion. But it seems to us that as the case was left the cause of the explosion was wholly a matter of conjecture, and that there was no evidence warranting a finding that it was due to a defect in the machine which could and should have been discovered by the exercise of proper care on the part of the defendant. There was nothing to show that the machine was not inspected by the defendant or that, if it was, the duty was negligently performed by the defendant. On the contrary it appears that this machine with the others was inspected several times daily to see if they were working right and the plunger was running true. The two boys who worked at the machines next to the plaintiff's intestate, one on one side and the other on the other, and who were called by the plaintiff testified that 'Thompson's machine was running nicely that day and that there was no complaint from him that day.' If this might seem to imply that he had complained about the running of the machine before, there was no evidence that he had done so or that the machine had been out of order. The accident occurred about half past 5 in the afternoon thus corroborating the statement of the boys that the 'machine was running nicely that day.' Clark the manager and superintendent, also called by the plaintiff, testified without contradiction, that the machine had been running well for three weeks, and that he had never known it to be out of order. The fact that the machine was a complicated one, and liable perhaps to get out of order, and that the material used to fill the firecrackers was of an explosive nature furnishes no evidence that the explosion was due to a defect in the machine or to the want of proper care on the part of the defendant. It is not a case where the doctrine of 'res ipsa loquitur' applies. It cannot be said that the circumstances were...