JOSEPH BROOKS v. KINSLEY IRON AND MACHINE COMPANY.

Sheldon, J. The fundamental question is whether there was evidence which would have warranted the jury in finding that the explosion by which the plaintiff was injured was due to an accumulation of rust or moisture in the pig bed into which the plaintiff was pouring molten iron, and that such accumulation was due to the negligence of the defendant or of some one for whose negligence the defendant was responsible. There was ample evidence that such an accumulation in the pig bed might cause an explosion like what did occur. There was also evidence that for many years, up to a short time before the happening of this explosion, care had been taken to keep the beds free from rust or moisture by taking out the iron each morning, placing them upside down upon two iron rails until they were needed for use, and rubbing any spot of rust with a black oil which was provided for that purpose; but that for a few weeks or months before the explosion this practice had been abandoned; that the care of these beds had been intrusted to a new

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and inexperienced employee, to whom no instructions were given, and who formed the habit of taking out the iron each morning and putting the beds upon the bare ground without any other attention. He was never, in any way, according to the evidence put in by the plaintiff, instructed to look for rust or moisture in them, or to take any precautions against its gathering. This change of practice was followed by an increased number of small but harmless explosions. And there was evidence that such an accumulation of rust or moisture as would create danger of a violent explosion, while it was not obvious to the moulder, whose duty it would be to pour molten iron into the bed, could readily be discovered by proper inspection made beforehand. It also could be found that the plaintiff and the other moulders were not charged with the duty of making such inspection, but were expected to use the beds as they found them, and that they had a right to rely upon proper care having been taken to keep them free from rust or moisture.

On the other hand there was no direct evidence of the presence of rust or moisture in the bed, at or before the time of the explosion. The plaintiff testified that moulten iron would fly in small particles, if it struck any hard substance like the ground, or still worse, upon a board, although this would not do more than burn the clothing; that an explosion was liable to occur at any time if a vat or pig bed was not properly kept. Other witnesses testified to the same effect. But there was no evidence that such an explosion as was testified to could have been produced from any other cause than an accumulation of rust or moisture. Accordingly, we are of opinion that the jury might have found that the explosion was due to such an accumulation. Indeed there was direct evidence that such an explosion could not have been due to any other cause.

But it is objected that this is not enough. If the existing state of affairs, however dangerous, might, according to the ordinary experience of mankind, have been due to other causes than negligence for which the defendant was responsible, then it was for the plaintiff to exclude the operation of those causes by the greater weight of evidence. Ryan v. Fall River Iron Works Co. 200 Mass. 188, 192. Childs v. American Express Co. 197 Mass. 337, 339. Saxe v. Walworth Manvf. Co. 191 Mass. 338, 341,

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Hofnauer v. R. H. White Co. 186 Mass. 47, 49. But these beds might be found to be a part of the defendant's ways, works and machinery. Prendible v. Connecticut River Manuf. Co. 160 Mass. 131. Donahue v. Buck, 197 Mass. 550. And the case at bar differs from those above referred to and similar cases, in that here there was positive evidence of negligence on the part of the defendant or its superintendent in discontinuing the precautions which had been taken to guard against this very danger, and of negligence which naturally would result in just such a dangerous condition of the beds as was claimed to exist. Where the jury have a right to find such actual negligence, followed by the existence of the very danger which might have been expected to arise therefrom, it cannot be said as matter of law that the plaintiff is bound to go further and to exclude the operation of other possible causes to which conceivably the danger might have been due, instead of having been due to the actual negligence which has been shown. We are not aware of any decision which has gone to that length. There was here more than a mere transitory risk arising from a temporary dampness, to be dried or wiped out by the man who was in charge of them, as in Whittaker v. Bent, 167 Mass. 588. These were permanent appliances; and the jury might find that the defendant had assumed the duty of inspecting them and keeping them dry and free from rust, and then, without notice or warning to the plaintiff, had abandoned the practice upon which he had become accustomed and had the right to rely. Donahue v. Buck, 197 Mass. 550, 552. McCabe v. Shields, 175 Mass. 438. There was evidence of a latent defect which the defendant ought to have discovered and guarded against. Smith v. Thomson-Houston Electric Co. 188 Mass. 371, 375. Murphy v. Marston Coal Co. 183 Mass. 385, 388. It was the duty of the defendant to provide reasonably safe and suitable appliances which, when used in the ordinary manner, would not involve unusual risks to its servants. Morena v. Winston, 194 Mass. 378, 384. Erickson v. American Steel & Wire Co. 193 Mass. 119, 126. Littlefield v. Edward P. Allis Co. 177 Mass. 151.

The plaintiff might have been found to have been himself in the exercise of due care. Although an expert moulder of very

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long experience and thoroughly familiar with the dangers of his employment, yet he did not assume the risk of negligence on the part of the defendant or of those fellow servants for whose negligence, under R. L. c. 106, § 71, the defendant was responsible. Meagher v. Crawford Laundry & Machinery Co. 187 Mass. 586, 589, and cases cited. He was not bound to guard against the existence of any hidden danger in the beds which would not have existed if proper care had been taken of them. Myers v. Hudson Iron Co. 150 Mass. 125, 134. As already has been said, he was not himself charged with any care over them, or any duty to inspect them. And such examination as he was able to make at the time of pouring, it could have been found, would not have disclosed to him the existence of any danger. Donahue v. Buck, 197 Mass. 550, 553. Redmund v. Butler, 168 Mass. 367.

For the same reasons, he did not assume the risk of an accident like this. Wagner v. Boston Elevated Bailway, 188 Mass. 437, 441. He cannot be prevented from recovering on the ground that, by continuing to work after he knew that the precautions formerly taken had been abandoned, he assumed the risks arising from such employment, as in McTiernan v. American Woolen Co. 197 Mass. 238. It does not decisively appear that he had such knowledge. It is the fact, as the defendant's counsel say in their brief, that it did not appear conclusively "when first, or for how long a time, the pig beds had been kept on iron rails, nor why [or when] the iron rails were done away with and the pig beds kept on the ground." These questions were for the jury.

The notice given under the provisions of R. L. c. 106, § 75, was addressed "to the treasurer" of the defendant, and was delivered in hand to the person who was then its treasurer. Even taking into account the contents of the notice, the jury would have had a right to find that this notice was addressed to and served upon the defendant through its treasurer. Shea v. New York, New Haven, & Hartford Railroad, 173 Mass. 177. De Forge v. New York, New Haven, & Hartford Railroad, 178 Mass. 59. McCabe v. Cambridge, 134 Mass. 484. And see Produce Exchange Trust Co. v. Bieberbach, 176 Mass. 577, 589, 590.

The case is close; but in our opinion it should have been submitted to the jury.

Exceptions sustained.