While the question is a very close one, the majority of the court are of opinion that the jury had a right to find that at the time of the accident the plaintiff’s intestate was in the exercise of due care.
■ This valve had been repaired by a steam fitter a few days before the accident, but it had since been lealdng. It was in the line of the intestate’s duty to go down to examine the valve and to attempt to tighten it if it needed that. After the explosion, his body was found in a corner near the valve and the tools that he would have used upon it were also there. From the place in which parts of the valve were found and from their condition, it could have been inferred that he must have gone behind the boiler before the bonnet of the valve was blown off, and could not have caused the accident by any careless act of his own, by loosening (for example) the bolt instead of tightening it. There was evidence that the pressure of the escaping steam, if the bonnet had been blown off before his coming there, would have been too great to permit him to go in at all, and that, if he had attempted to turn the nut the wrong way, the steam would have escaped to such an extent as to have driven him away. Upon the testimony of Sullivan the State inspector it could be found to have been proper for the intestate to go down at once to this valve and give to it his immediate personal attention; and, so far as can be seen, it cannot be said that it was negligent for him to suppose that the only trouble with the valve was some leakage, or that it Was not proper for him to attempt to stop that leakage at once by tightening the bolt. Apparently he could have done nothing except either to tighten or to loosen the bolt, and upon the circumstances which were in evidence it could be found that he did not loosen it. It is true that he was an experienced engineer, in charge of this engine and the boilers, and thoroughly familiar with their working. It is true also that there was no direct evidence of what he was doing at and just before the time of the accident, and that the burden was upon the plaintiff to show that he was in the exercise of due care, and that this cannot be presumed *243in the absence of evidence. See the cases collected in McCulloch v. Needham, ante, 227. But here an inference can be drawn from the circumstances that were testified to.
Undoubtedly the evidence was meagre, and a finding in favor of the defendant reasonably might have been expected on this issue; but we can consider only whether there was any real evidence. If a finding is against the evidence, the remedy is by an application to the judge who presided at the trial. Aiken v. Holyoke Street Railway, 180 Mass. 8.
There was evidence of the defendant’s negligence in having allowed the valve to get into a defective and dangerous condition and not having it properly repaired, in that the bolt was not put in squarely so as to fit properly, but a little crosswise, so that upon being brought up squarely in an effort to tighten it, it would be likely to fall out, with the result which happened. There was evidence that the bolt had been left in a defective and dangerous condition for some days; and the jury could find that in the exercise of reasonable care the defendant ought to have discovered and remedied this. Nor did it appear conclusively that the intestate was affected with notice of the defect and danger, however probable that may seem.
The intestate did not assume the risk of injury from a defect which was not open and obvious and of which he had no knowledge. This is elementary and requires no discussion or citation of authorities.
The defendant offered to prove that Sullivan had said that under no circumstances would he have gone into the place where the intestate was at the time of the explosion, if there were eighty pounds of steam on the boiler, and have attempted to move the bolts; and also that he had said that under no circumstances would he have done so if he was in a four acre lot and could run away. This was excluded, and the defendant excepted. The exclusion was right. It was immaterial what Sullivan would have done, and yet more immaterial what he might have said that he would have done. Swan v. County of Middlesex, 101 Mass. 173, 179. Ryerson v. Abington, 102 Mass. 526, 531.
The other exceptions to rulings on the admission of testimony have not been argued, and we treat them as waived.
Exceptions overruled.