
    Mary Lyons, administratrix, vs. Boston Towage and Lighterage Company.
    Suffolk.
    January 21, 22, 1895.
    February 28, 1895.
    Present: Field, C. J., Holmes, Knowlton, & Morton, JJ.
    
      Personal Injuries — Due Care — Negligence—Explosion caused by Torch held • by Fellow Workman.
    
    An employee cannot recover for personal injuries received while painting the inside of a tank by the explosion of gas generated by the varnish used by him, wbicli explosion was caused by a lighted torch held by a fellow workman at the employee’s suggestion, if there is no evidence that the varnish was different from what the employee had used for twelve years, or that the employer knew of any difference, or that he contemplated the use of a torch.
    Tort, for personal injuries received and sufferings endured by the plaintiff’s intestate previous to his death. Trial in the Superior Court, before Sherman, J., who, upon the evidence offered by the plaintiff, and at the request of the defendant, directed a verdict for the defendant; and the plaintiff alleged exceptions.
    
      L. M. Child T. II. Buttimer, for the plaintiff.
    
      J. Lowell, Jr., (S. H. Smith with him,) for the defendant.
   Holmes, J.

, The plaintiff’s intestate, Michael Lyons, was ordered to paint- the inside of a tank with black varnish. While he was doing so, and a fellow workman was holding a torch for him at his suggestion, the fumes of the varnish caught fire from the torch, and he was burned so badly that he died. Lyons had worked for the defendant twelve years. It was part of his regular business to paint this and other tanks, and he had done so a good many times. Black varnish was the paint used. The tank had to be painted about once a year.

We assume that black varnish is dangerous in the sense that it is liable to generate inflammable fumes, but any dangers incident to the use of black varnish in general the defendant had every reason to believe to be as well known to Lyons as to itself. After twelve years he would be supposed to have taken the risk of them. There was no evidence that the varnish used on this occasion was of inferior quality, or different from what always had been used, except the fact of the accident. There was no evidence that the defendant knew of the difference, if there was any. There was no evidence that it contemplated the use of a torch, which came from Lyons’s own suggestion. We do not perceive any particular in which the defendant fairly can be said to have failed in its duty.

Exceptions overruled. 
      
      
         The bill of exceptions recited that the tank was in the hold of a lighter at the wharf, and was an iron cylinder about sixteen feet long, and about four feet high and four feet wide. It was in the lower part of the lighter, and the only opening to the same was a manhole in the end, an oval opening about a foot and a half in diameter and about one foot in width. There was evidence that this tank was used to contain water to supply the steam engine on the lighter; that this tank had to be painted about once a year; that the paint that was used for that purpose was of a kind known as black varnish; that it was kept in the storehouse of the defendant, and was the only kind of paint there; that the foreman told Butler to paint the tank; that he, in accordance with the usual mode of doing that work, went to the storehouse and got a pot of black varnish and a lantern. He then went down to the lighter and crawled into the tank with the lantern and commenced work. After working there about half an hour the gas that arose from the varnish which was on the inside of the tank became so strong that Butler crawled out of the tank and went back to the foreman and told him he did not want to work any longer there, because the gas arising from the varnish was too strong for him. The foreman then told him to go back there and he would send Lyons to assist him and they could take turns in the tank. Thereupon Butler went back to the tank and was shortly after joined by the plaintiff’s intestate. Lyons got into the tank and was handed a lighted lantern by Butler. After a few minutes the light in the lantern went out, and after having been trimmed and relighted it went out again.
      There was upon the lighter a torch, and when the light went out the second time, Lyons suggested that they might use the torch. Thereupon Butler took the torch and lighted it and held it outside of the tank within about a foot of the manhole so as to give light to Lyons within the tank. This light or some artificial light was necessary for the purpose of doing the work, as there was no light within the tank, and no opportunity to procure any except artificial light. While Butler was so holding the torch for the purpose of giving light, and Lyons was at work painting the tank, the gas that was generated by the varnish ignited from the torch; whereupon Butler cried out. Lyons jumped and put his hands on the edge of the tank for the purpose of crawling out, and the gas that minute exploded and blew Lyons out of the tank through the manhole into the hold of the lighter, causing injuries from which he died in forty-eight hours.
     