O'Reilly v. Bowker Fertilizer Co.

54 N.E. 534, 174 Mass. 202, 1899 Mass. LEXIS 892

• Court: Massachusetts Supreme Judicial Court
• Decided: September 7, 1899
• Status: Published

Opinion

Lathrop, J.

The plaintiff’s theory of this case is that while he was at work clearing with a shovel an elevator well, the machinery in which — an endless chain of buckets — had become clogged, and while he had between his feet a lantern, the defendant’s superintendent, knowing the position of the lantern, gave directions without the plaintiff’s knowledge to start the machinery in the well; that the machinery generated a strong current of air in the vicinity ; that this current struck the lantern, and, as the air was charged with inflammable dust or powder arising from the material in process of manufacture, an explosion followed which caused the injury.

While the exceptions state that the material being fed into the elevator was like a fine powder or dust which covered the premises and machinery, and was inflammable, it does not appear that this fact was known to the superintendent or ought to have been known to him. The material was made from bone, rock, and refuse from slaughter houses, and was ground to the consistency of flour or meal. But while it is well known that wheat flour is inflammable, there is nothing in the evidence in this case to show that the product being manufactured at the time of the accident was known to be inflammable before the accident itself showed it to be so. Nor do we find any evidence that the superintendent, if he knew that the plaintiff was working with a lantern, had knowledge that he had placed it between his feet. The evidence shows that the pile of material was five or six feet high; and that the plaintiff was working on one side and the superintendent was on the other side, about eight feet off.

If, however, it be assumed'that the inflammability of the dust was a matter of common knowledge, it is difficult to see why the plaintiff did not know as much about it as any one. He had been engaged in this work- for three years, and must have known all that was to be ascertained from familiarity with the nature of the material and of the work. See Lyons v. Boston Towage & Lighterage Co. 163 Mass. 158.

Without going further into the details of the ease, a majority of the court is of opinion that the evidence is not sufficient to warrant the jury in finding the defendant liable; and the request that a verdict be directed for the defendant should have been granted. Exceptions sustained.