Cogliano v. Ferguson , 228 Mass. 147 ( 1917 )

Rugg, C. J.

This is an action of tort to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant by reason of the explosion of a charge of dynamite left unexploded from a prior blast. The accident occurred in Maine. Therefore the rights of the parties are to be settled according to the law of that State unaffected by St. 1911, c. 751, Part I, § 1, of the workmen’s compensation act. Such statutes of this Commonwealth have no force outside our borders. Gould’s Case, 215 Mass. 480. There was no dispute that the law of Maine puts the burden on the plaintiff to prove his own due care and to negative assumption of risk. Otherwise the case is to be governed by the principles of the common law, which are presumed to be the same in Maine as those prevailing in this Commonwealth. Lemieux v. Boston & Maine Railroad, 219 Mass. 399.

There was evidence from which it could have been found that the defendant had taken a contract to do excavating for the Gardiner water district in Maine and was at the work in person from time to time, and that a large amount of blasting was required to be done in the execution of the contract; that the plaintiff was boss in general charge of the work, but that he had no special knowledge of blasting and did not know that it was a frequent occurrence for charges to fail to explode and that therefore careful inspection was necessary after the firing of each blast to see that every charge was exploded; and that the plaintiff, although the general boss, had nothing to do with blasting, which was in the charge of another employee of the defendant. The course of work at the time of the injury was to drill a series of holes in the rock, charge them with dynamite and explode them by a battery. The evidence tended to show that the charge in one hole failed to explode with the others and that it exploded later when the plaintiff was working near by.

However strange it may seem that a boss of such experience as the plaintiff described himself to be should be ignorant of these facts about modern methods of blasting by the use of dynamite, still the extent of his actual knowledge in this respect was a question of fact, and the case must be considered on the footing that the jury had a right to give credit to the testimony of the plaintiff and to reject other testimony and inferences in conflict therewith. This is not a case where the uncontroverted facts require one conclusion regardless of the oral testimony of a witness.

It must be assumed, therefore, that although the plaintiff was a boss on this class of work, he was ignorant of the danger from unexploded charges. It hardly can be ruled as matter of law that a boss who is in charge of general work under the circumstances here disclosed assumed all risk connected with it in the absence of some express or implied deceit or some conduct tending to mislead the employer. The defendant testified that he talked with the plaintiff before hiring him, as to his experience in blasting, and was given full assurance upon the point, but apparently that was not found to be the fact. If an employer chooses to put blasting in the charge of one man and to make another boss of every part of the work except the blasting, there is no necessary presumption as matter of law that the latter knows the peculiar and concealed dangers attaching to blasting. The plaintiff did not assume the risk of such a hidden danger as an unexploded blast if he was ignorant of any risk arising from that source. Manifestly, if he was ignorant of the fact of hazard of this kind, he was not lacking in due care by working near it.

The defendant might have been found wanting in the performance of his duty to furnish a place free from hidden and unknown danger, to put even a boss at work on a ledge where such a secret peril might be lurking after every large blast, without giving him warning in that respect.

The defendant himself was present frequently enough to be held responsible for the method of the conduct of the work. If it was necessary for the safety of the workmen that there should be a rigid system of inspection after the firing of each blast, and there was no inspection, the defendant may have been found negligent in failing to provide inspection. The case is governed in its crucial aspects by Hopkins v. O’Leary, 176 Mass. 259, Hooe v. Boston & Northern Street Railway, 187 Mass. 67, Byrne v. Farnum, 188 Mass. 219, and Marana v. McDonough, 212 Mass. 189.

The testimony of the plaintiff as to his state of ignorance of this risk, whatever its weight may seem to be, cannot be characterized as insufficient in law to warrant submitting the case to a jury on the three counts. The case is distinguishable for this reason from Hickey v. Worcester, 213 Mass. 125, Allard v. Hildreth, 173 Mass. 26, and similar cases.

Exceptions overruled.