Lehman v. Van Nostrand , 165 Mass. 233 ( 1896 )

Allen, J.

The injury to the plaintiff resulted from the bursting of a bottle of ale while he was engaged in packing ale for the defendant. There was evidence tending to show that the ale was too lively to be handled with safety, and was likely to cause the bottles to burst. The plaintiff had been at work for the defendant about ten days. Before that he had had a -large experience in packing sweet beers, ale, and lager in champagne bottles, but had never seen a bottle of ale explode like that which caused the injury to him until the day of the accident. On that day, two bottles had previously exploded, and he knew that this was because the ale was in too lively a condition, and before he was injured he knew there was danger in handling the bottles and packing them. The accident to the plaintiff happened about an hour afterwards. The plaintiff needed no more instruction to inform him that there was danger, and in fact he knew and appreciated the risk, and must, upon his own statement, be held to have assumed it; and, in the opinion of a majority of the court, the defendant was entitled to an instruction to the jury accordingly. Exceptions sustained.