GRIMALDI v. LANE

In an action under St. 1887, c. 270, brought by a workman in a quarry against his employer to recover for injuries received from an explosion, it appeared, that the plaintiff's work consisted of breaking stone and had nothing to do with blasting, that the plaintiff discovered a blasting hole loaded with dynamite cartridges which had failed to explode and informed the superintendent of the quarry who ordered a workman to unload the hole, that the workman attempted to do so by using an iron scraper which was a dangerous instrument to use for this purpose, that the superintendent stayed at the hole watching the workman use the scraper for four or five minutes and then left without warning the plaintiff, who was working near, to move away. An explosion followed, caused by the use of the scraper, and the plaintiff was injured. Held, that there was evidence to warrant the jury in finding that the plaintiff was in the exercise of due care and that the defendant's superintendent was negligent.

LORING, J.

There was evidence in this case on which the jury were warranted in finding that the defendants' superintendent instructed Melone to unload the hole, and that he was present while Melone undertook to remove the dynamite from it with an iron spoon or scraper; that that was a negligent way of dealing with a hole loaded with dynamite which had failed to explode; and, finally, that the superintendent did not tell the plaintiff to go away while the hole was being unloaded in this manner. If these were found to be the facts, the defendants were negligent, the injury was not due solely to the negligence of Melone, and the first and third instructions were rightly refused.

There was also evidence that the plaintiff's work in stone quarries had been confined to removing with a bar the broken stone after a blast had been made, breaking it up with a sledge hammer, and loading it on to wheelbarrows to go to the crusher; that he did not know that a blow or a spark would make dynamite go off, though he thought that if the dynamite was hit "real hard it would be liable to go off." Such an employee cannot, as a matter of law, be held to be guilty of contributory negligence in not going to a safe distance while the hole which did not explode was being unloaded with the iron spoon. The risk of an explosion under those circumstances cannot be held as matter of law to be obvious to a man of ordinary intelligence or to a man whose experience in dynamite was no more extensive than the jury were warranted in finding the plaintiff's to have been.

Exceptions overruled.