In an action by the widow of a workman in a cotton mill to recover for his instantaneous death, caused by being struck by a plank thrown down a dust chimney of the mill, it appeared that the chimney was built with large openings at the bottom into the basement of the mill for the purpose of drawing up and discharging at its top particles of cotton waste and dust. It contained an iron ladder from the bottom to the top and at intervals iron platforms on which were laid planks, the platforms being used by workmen when going up the chimney to sweep down particles of cotton adhering to its sides. There being a fire in this chimney, a workman, sent up the ladder to put it out, threw down two planks which were on fire, and when asked by the defendant's superintendent why he did so, replied that it was easier to put out the fire that way, whereupon the superintendent said "All right." A few hours later another fire broke out in the chimney, and the superintendent called and led the plaintiff's husband with other workmen into the bottom of the chimney where they stood near an alcove which was an enlargement of the bottom of the chimney and had a roof. The superintendent again sent up the ladder the same man who had put out the other fire and thrown down the planks. He threw down another plank which he thought was on fire, which struck and killed the plaintiff's husband, who did not know about the planks being thrown down at the previous fire. He was standing a little inside of the chimney. Before the last plank was thrown down the superintendent had left the place without giving the plaintiff's husband any warning. The workman who threw down the plank testified, that he cried out to warn those below when he did so. The superintendent testified that he expected the workman on the ladder would throw down any planks that were on fire. Held, that a verdict for the plaintiff was warranted by the evidence, there being evidence on which the jury might find that the deceased had no notice of the special danger of planks being thrown down and had a right to suppose that the chimney was a safe place, and that there was evidence on which the jury might find that the defendant's superintendent was negligent in knowing the danger and calling on the plaintiff to enter the chimney without warning him of it. The superintendent had no right to assume that the deceased would look out for himself, as the danger was not apparent. The falling of burning cotton waste, which the deceased might have anticipated, would be harmless.
HOLMES, C.J.
This is an action brought under St. 1887, c. 270, and St. 1894, c. 499, by the widow of one Remi Cote, to recover for his having been instantaneously killed by reason of the negligence of a superintendent. According to the plaintiff's evidence the facts were these. There had been a fire in a dust chimney in the afternoon. To put it out a man by the name of Matthot had climbed a ladder inside the chimney, and among other things had thrown down two boards from one of the platforms which projected at regular intervals into the chimney. This the deceased did not know. The superintendent saw that the boards had fallen, and asked one Fortin, who seems to have exercised some little official or unofficial authority over Matthot, why they threw the plank down. Fortin gave some reasons and his superintendent answered "All right." This Fortin told Matthot. Some hours later fire broke out again in the chimney, and the superintendent sent Cote and other men to the place. They went there with the superintendent and stood under a little shed at the mouth of the chimney, waiting for orders. Matthot again went up the ladder and threw down another plank which he thought was burning. The superintendent expected that he would do so, if he thought that a plank was on fire. Cote had got a little inside the chimney and was killed. The case is here on exceptions to a refusal to take the case from the jury.
It is argued that the deceased did not use due care. Undoubtedly the jury would have had sufficient warrant for finding so, on the evidence, but it could not be ruled as matter of law. He did not know that boards had been thrown down. He was directed in terms by the superintendent to go to a place separated from the place where he was killed only by the invisible line between the inside and the outside of the chimney. Under their instructions the jury must have found that he reasonably understood that it was his duty to go into the chimney. Indeed, it rather looks as if the superintendent saw him there before leaving the place. We cannot say that the jury were not warranted in finding that the deceased had no notice of the special danger of boards being thrown down, and had a right to suppose that the chimney was a safe place.
As to the negligence of the superintendent he naturally understood, and he says that he did, that Matthot would throw down planks if they seemed to be on fire. He led the deceased to the place. We must take it that his orders reasonably would have been understood to call on Cote to enter the chimney. He knew the danger and gave no warning. We cannot say that the danger was apparent, or that the superintendent had a right to assume that Cote would look out for himself. The only thing which it was entirely plain might come down was light, burning cotton waste, which would do no harm.
It is said that if Matthot, Cote's fellow servant, did not give warning, the death was due to his negligence, not to that of the superintendent, and that if he gave the warning to which he testified, then neither he nor the superintendent was negligent. But the jury might have found that Matthot did all that he had any reason to suppose that he ought to do, that Cote received no warning, and that the superintendent, knowing all the facts, ought to have seen that he was warned.
The evidence as to what the superintendent expected Matthot to do was evidence under the circumstances of what was the reasonable interpretation of the order setting him to work.
We have dealt with all the exceptions which were argued and have examined the others. We see no ground for disturbing the verdict.
Exceptions overruled.