CATHERINE DULLIGAN, administratrix, vs. BARBER ASPHALT PAVING COMPANY

RUGG, J. This is an action of tort brought by the administratrix of the estate of Thomas Dulligan. The declaration contained two counts. The first was framed to recover for the death of Thomas Dulligan, under R. L. c. 106, occasioned by the negligence of a superintendent of the defendant. The second count was to recover for conscious suffering of the plaintiff's intestate arising

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from common law negligence of the defendant. The two counts were joined in one cause of action under St. 1906, c. 370. See Bartley v. Boston & Northern Street Railway, 198 Mass. 163. In the Superior Court a verdict was directed for the defendant on the first count. The plaintiff's exception brings the correctness of that ruling before us. The defendant excepted to the refusal of the Superior Court to direct a verdict in its favor on the second count [Note p229] and to give various rulings. Its exceptions bring here the questions thereby raised.

There was evidence tending to show that the plaintiff's intestate was a licensed fireman, and had been employed by the defendant upon another branch of its work in a different locality until the night before the accident, when the superintendent of the defendant placed him at work at the asphalt tank. This apparatus was called a " single car asphalt plant," and consisted of the wheels and frame of a long platform railroad freight car, upon which were placed three tanks for the heating or mixing of asphalt, under each of which was a furnace. Each tank was fitted with a lid or cover. There was also upon the car a gasoline engine and a steam boiler, together with certain other machinery. The defendant's superintendent, when he placed the plaintiff's intestate at work, showed him the steam boiler, and told him to keep the steam up so that nothing would freeze, and showed him also the asphalt tanks, and directed him to keep the covers up on a clear night, and on a rainy night to put in a barrel stave, which would hold them four or five inches up. He also gave directions as to keeping the fires under the asphalt tanks, and handed him a thermometer, for the purpose of taking the temperature of the material in the tanks, and a lantern. In order to take this temperature, it was necessary for him to climb by a ladder to the top of the tanks, and with a lighted lantern examine the thermometer, which was a tube about five feet in length, and which, when he was taking the temperature, protruded about two feet above the tank, the lower part being in the asphalt. No instructions were given as to what should be done if the covers were found down, nor did it appear that anything was said as to how frequently the temperature should be taken. When the plaintiff's intestate

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went to work on the night in question the lids of the tanks were closed, although it did not appear that he knew this until he went up on the ladder two hours or more later for the purpose of taking the temperature. On opening one of the lids an explosion occurred, which caused the injuries of which he subsequently died. There was also evidence tending to show that the asphalt and other materials, which were heated in the tanks, generated an explosive gas, which when overheated or in contact with flame would be likely to cause an explosion. The defendant's superintendent testified that in an experience of many years he had never known an explosion of this sort, and did not know that it was likely to occur. This evidence, however, the jury were not bound to believe, and if believed it was not conclusive upon the issues before them.

One question was whether the defendant, in the exercise of reasonable care and skill, ought to have known that it was likely that an explosion would occur unless constant pains were taken to see that the tanks were properly ventilated. It was within the province of the jury to find that, if the defendant was compounding a substance at a considerable heat and was utilizing the chemical processes, set in motion by the application of heat to the asphalt and petroleum product in the tank, it ought, in the exercise of ordinary prudence, to have known that dangerous gases were liable to be generated, and that due care required precautions to be taken for their harmless dissipation and prevention of accumulating in dangerous quantities. La Fortune v. Jolly, 167 Mass. 170. The second count therefore was properly left to the jury.

The defendant's requests for ruling were rightly refused. The third, fourth, fifth and sixth requests [Note p230] were based upon the gen-

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eral proposition that if the explosion which occasioned the injury was of such infrequent occurrence as to be unknown to men engaged in the business for a period of many years, then the defendant was not responsible for it. This is obviously unsound. Such experience may be weighty evidence, but it is not the final criterion. It might well be that no such explosion had been known of in the defendant's business because proper care had always theretofore been taken to avoid such a calamity. Moreover, the standard, which the law establishes, is the exercise of reasonable prudence, and not experience in or knowledge of accidents of a similar character. The test is whether the conditions, which led to an extraordinary or even unprecedented accident, were such that no reasonably prudent proprietor would have suffered to exist. The particular manifestation of the result of careless conditions is not infrequently quite out of the usual experience, but if the conditions possess elements of negligence, the person responsible for them may also be held responsible for the result. See, for example, Herlihy v. Little, 200 Mass. 284 ; Turner v. Page, 186 Mass. 600 ; Lane v. Atlantic Works, 111 Mass. 136 ; Slattery v. Lawrence Ice Co. 190 Mass. 79 ; Powell v. Deveney, 3 Cush. 300 ; Erickson v. American Steel & Wire Co. 193 Mass. 119, 125 ; Derry v. Flitner, 118 Mass. 131 ; Koplan v. Boston Gas Light Co. 177 Mass. 15.

The eleventh and twelfth requests [Note p231] were properly refused, because there was no evidence that the plaintiff's intestate was instructed, or that it was a part of his duty to look at the tank covers before it became his duty to take the temperature of the contents of the tanks, and there was nothing to show that he

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failed to do this earlier than his duty required. It cannot be said that the plaintiff's intestate was negligent, or that he assumed the risk of injury. The jury might have found that he was doing his work, lantern in hand, as he had been instructed to do it. The danger to which he was subjected was one as to which he had no knowledge or experience, or appreciation, according to his declaration shortly after the explosion, which the jury might have believed. The defendant's other prayers were properly refused.

The only other ruling requested by the defendant and refused by the judge was that on all the evidence the plaintiff was not entitled to recover. This could not have been given for reasons already stated.

Although the question is close, we think the case should have been submitted to the jury upon the first count, which alleged the negligence of the superintendent as a ground for recovery for the death under the employers' liability act. The test in this respect is not whether the particular superintendent did or failed to do anything contrary to his own knowledge, but whether he failed to exercise in his employer's business the reasonable care and skill which both the employer and fellow employees were entitled to expect and receive from him as a reasonably prudent and wise superintendent. The standard, which the law establishes in such a case, is whether he exercised the reasonable care and skill that a competent superintendent ought to have exercised under similar circumstances.

As bearing upon the knowledge that the superintendent bad, or ought to have had, that fire was likely to occur from the tanks, a witness was permitted to testify that one of those tanks only a few days before the accident had given forth fire. This evidence, although admitted subject to exception, was competent within the discretion of the presiding judge for the purpose of showing that a superintendent in the exercise of reasonable care could have discovered that an explosive compound was generated in the tank. See Bemis v. Temple, 162 Mass. 342.

On the whole, we are of opinion that it would have been within the bounds of reason for the jury to find that the superintendent should have instructed the plaintiff's intestate as to how be should conduct himself with reference to the use of the

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lighted lanterns in reading the temperature of the asphalt, in the event that he found the covers of the tanks down instead of open as they ought to have been, and that this failure to give instructions may have been found to have been negligence.

Nor is there any error in the charge in the respects excepted to by the defendant. The statement of the evidence, to which objection was taken, while it was not in conformity to the contention of the defendant, was supported by some parts of the testimony. It was not given in such context as to impose it upon the jury as a binding statement or as anything more than a mere recitation of the judge's understanding of the evidence. The charge also, in substance, left it open for the jury to find that it was culpable negligence, if the defendant failed to instruct the plaintiff's intestate as to the danger existing when he found the tank covers down and went up to take the readings of the thermometer by the light of his lantern. This was correct as has been pointed out above.

The plaintiff contends that the new trial should be limited to the questions of damages alone. The responsibility of an employer for a superintendent under the employers' liability act in some material respects differs from his common law responsibility for negligence set out in the second count, and therefore her contention in this respect cannot be supported. The result is that the plaintiff is entitled to a new trial upon the first count in her declaration, and to have the verdict in her favor upon the second count stand. Gorham v. Moor, 197 Mass. 522. Amherst Bank v. Root, 2 Met. 522, 542. Sprague v. Bailey, 19 Pick. 436, 442. Robbins v. Townsend, 20 Pick. 345, 351.

Plaintiff's exceptions sustained ; defendant's exceptions overruled.

J. Gordon, (M. L. Fahey with him,) for the plaintiff.

E. K. Arnold, (W. B. Luther with him,) for the defendant.