Dean v. E. D. Smith

48 N.E. 619, 169 Mass. 569, 1897 Mass. LEXIS 121

• Court: Massachusetts Supreme Judicial Court
• Decided: November 24, 1897
• Status: Published

Opinion

Allen, J.

There was evidence tending to show that McAttee was acting as superintendent in directing the work, and telling where holes were to be made; that on the Saturday before the accident one hole, which had been loaded with dynamite, had not been fired, owing to a want of connection of the wire; that this was known to McAttee; that on the Monday following he directed the plaintiff to drill a new hole, which pointed towards the hole where the dynamite was; and that the explosion by whicli the plaintiff was hurt resulted from contact with the dynamite in drilling the new hole. This evidence tended to show that the accident occurred in consequence of the negligence of the defendants’ superintendent, while he was acting in that capacity. The plaintiff testified that he knew nothing of there being dynamite in the rock; and it could not be held as matter of law that he assumed the risk.

There was some evidence on the part of the defence that McAttee had reason to think that this charge had been exploded, and that before putting the plaintiff to work he looked to see if he could find any miss-fires, and found none. But on all the evidence, it was for the jury to determine whether he was negligent in putting the plaintiff to work there, knowing that one charge had not been exploded, or making an insufficient and negligent examination to ascertain the facts. Exceptions overruled.