La Fortune v. Jolly , 167 Mass. 170 ( 1896 )

Lathrop, J.

Under the ruling of the court, the only questions which are now before us arise under the first and third counts of the declaration, which are at common law. The first count alleges negligence on the part of the defendants in failing to instruct the plaintiff in his duties and to warn him as to the dangers thereof. The third count alleges that the defendants negligently failed to furnish the plaintiff with a reasonably safe and suitable place in which to work.

The plaintiff was a chipper and helper in the defendants’ factory, and his general duty was to chip and file off the rough edges of castings, and to assist the other men when called upon to do so. On June 8,1895, the plaintiff was told by John Jolly, a son of one of the defendants, to kindle a fire under one of the boilers on the morning of the next day, which was a Sunday. He objected, on the ground that he was afraid to do it, as he had never done it before. Jolly, however, insisted upon the plaintiff’s obeying him, and the next morning the plaintiff put shavings in the furnace, lighted them, continued to stuff in more shavings, and, more than an hour after the fire was started, there was an explosio.n inside, the door of the fire box flew open, and the plaintiff was seriously burned. There was evidence to show that the cause of the explosion was that too many shavings were put in at once, thereby stopping the draft, and preventing the gas formed by the combustion from passing off by the chimney.

The defendants contend that it was not within the scope of the plaintiff’s duties to light the fire under the boiler; but there was certainly evidence for the jury on this point. James Jolly, one of the defendants, testified that “ it was the helpers’ business to do what John Jolly told them ”; and that “ it was a part of the helpers’ business to light this fire.” While it appears in evidence that the plaintiff was reluctant to build the fire, because, as he said, he had never done so before, and was afraid of danger from an explosion or from being burnt, yet it does not appear that he knew anything about any risk from the door of the fire box blowing open. On the contrary, he testified that he never saw the door blow open before, although he had worked there for two years and two months. The risk was not an obvious one, nor can it be said, as matter of law, that, if he did not know it, he ought to have known it. The furnace and boiler were not used on week days to furnish power. The furnace was then used to burn the waste shavings. On Sundays the furnace and boiler were used for power. The plaintiff testified that he had been there on Sundays only twice before. The plaintiff had never before been called upon to make the fire and get up steam, this work being generally done by one Kelley, who was ill at the time of the accident. We are of opinion that, under these circumstances, it cannot be said that, as matter of law, the plaintiff took the risk. One of the defendants, at least, knew that the door of the fire box had blown open several times before the accident, and the danger was obvious if the door should blow open. While this defendant testified that he spoke on Saturday to his son John to start up the fire, and that he gave no instruction to bis son with reference to the plaintiff’s starting the fire, yet, as he also testified that it was the helpers’ duty to do what John told them, we are of opinion that, if John directed a helper who did not know the danger to build the fire, and failed to give him proper instructions, he represented for this purpose the defendants, and they are liable for his neglect. Bjbjian v. Woonsocket Rubber Co. 164 Mass. 214, 220.

On the third count, the defendants asked the court to instruct the jury as' follows: “ There is no sufficient evidence that th¿ defendants negligently failed to furnish the plaintiff with a reasonably safe and suitable place in which to work, and there can be no recovery on that ground.” We are of opinion that this request was rightly refused. If we assume in favor of the defendants that there was no evidence that the furnace or boiler was defective or dangerous when a fire was properly made therein, yet if there was danger when a fire was made in the furnace by an inexperienced employee, who was ordered to make it, and this danger was known to the employer and not to the employee, and no instructions were given to the employee, it may properly be said that he is set to work in a dangerous place. Coombs v. New Bedford Cordage Co. 102 Mass. 572. There was evidence for the jury upon all of these points.

The defendants offered to show that James Jolly gave instructians to his son John to start up the fire himself. Evidence of this was excluded, and the defendants excepted. We have already recited the testimony of James Jolly as to the authority of John to call upon the helpers to make the fire. If John had this general authority, evidence that this authority was secretly withdrawn on the particular occasion in controversy was incompetent, and was properly excluded.

Exceptions overruled.