Whittaker v. Bent

• Decision Date: 25 February 1897
• Citation: 46 N.E. 121,167 Mass. 588
• Parties: WHITTAKER v. BENT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

167 Mass. 588

46 N.E. 121

WHITTAKER v. BENT.

Supreme Judicial Court of Massachusetts, Suffolk.

February 25, 1897

COUNSEL

C.E. Washburn, for plaintiff.

Wiggin E. Fernald and Long & Hemenway, for defendant.

OPINION

HOLMES J.

This is an action for personal injuries caused by the explosion of some melted iron which the plaintiff was pouring into a mold in the defendant's foundry, where the plaintiff worked. The iron blew out because the mold was damp. The declaration contains three counts, one at common law for defective machinery, and two on the statute, alleging defects in the condition of the ways, works, and machinery, and negligence of a person exercising superintendence. The dampness of the molds could be ascertained only at the moment when they were set up. If they were damp, it was the duty of the man who set them up to have them dried at the forge, or to wipe them out with a rag, oil and blacklead them. The liability of the molds to be damp was well known. The cause of the dampness complained of is questionable, and not material. At the time of the accident, the molds had been set up by a man whom we assume, for the purposes of decision, to have been a superintendent. According to the plaintiff's testimony he asked this man if the molds were all right, and received the answer, "Yes; go ahead, Bob." The judge before whom the case was tried directed a verdict for the defendant.

We are of opinion that the direction was right. The temporary dampness of the molds was not a defective condition of the machinery, within the meaning of the statute or the rules of the common law. Lynch v. Allyn, 160 Mass. 248, 252 253, 35 N.E. 550. There was no personal obligation on the part of the defendant to have the molds inspected for dampness. The molds were small and numerous, the danger transitory, and any further inspection than that necessarily left to the plaintiff's fellow servants would have been impracticable. See Garragan v. Iron-Works Co., 158 Mass. 596, 33 N.E. 652. The absolute obligation of an employer to see that due care is used to provide safe appliances for his workmen is not extended to all the passing risks which arise from short-lived causes. McCann v Kennedy, 167 Mass. 23, 44 N.E. 1055. See, also Johnson v. Towboat Co., 135 Mass. 209; Moynihan v. Hills Co., 146 Mass. 586, 592, 593, 16 N.E. 574; Bjbjian v. Rubber Co., 164 Mass. 214, 219, 41 N.E. 265. In a case like the present, where the danger is recurring, no doubt there may be a duty to give a general warning to look out for it. But that the plaintiff...