The finding and ruling of the judge, above quoted, that the service of the writ on January 17, 1931, was a service on the Massachusetts corporation and was not a service on the Connecticut corporation which was dissolved by final certificate on May 20, 1931, was warranted by the evidence before the court. Tardiff v. Lynn Sand Stone Co. 288 Mass. 472. On the "Abridged Statement of Evidence" there can be no doubt that Luke Tardiff, one of the defendants in this bill of complaint, intended to sue the company by which he had been employed when injured, or that his attorney intended to sue that company.

We need not consider any alleged waiver by the defendant. Farber v. Mutual Life Ins. Co. 250 Mass. 250, 253. Tardiff v. Lynn Sand Stone Co. 288 Mass. 472, 479. The defendant strongly contends that there was no evidence of its negligence. It stresses the holiday week end, the crowded platform and train, and the impracticability of holding the departure of the train from a nonterminal station to be sure that all nonpassengers had alighted. It was undoubtedly the duty of the plaintiff to notify some one of the train crew, or other railroad employee with duties to perform on the platform, of his purpose in entering the train before he could charge the defendant with the duty of exercising care for his safety when leaving.

It seems plain that the jury could find that the danger of being hit by a stone from a "pop hole" blast at a distance of five hundred sixty-five feet was not an obvious risk of the work which the plaintiff impliedly agreed to assume when he undertook the employment ( Engel v. Boston Ice Co. 295 Mass. 428, 432; Doherty v. Paul's for Tires, Inc. 314 Mass. 83, 85), and that they could also find that the plaintiff's injury was caused by the negligence of the defendant in failing adequately to warn the plaintiff or by negligence of the defendant's dynamite man in overloading the blast. Tardiff v. Lynn Sand Stone Co. 288 Mass. 472. Marana v. McDonough, 212 Mass. 189. Cogliano v. Ferguson, 228 Mass. 147, and cases cited.

No such allegation was necessary. Tardiff v. Lynn Sand Stone Co. 288 Mass. 472, 477. Besides, the plaintiff was not prejudiced, as the trial proceeded upon the theory that the defendant was not insured.

McCafferty v. Lewando's French Dyeing Cleansing Co. 194 Mass. 412. Sylvain v. Boston Maine Railroad, 280 Mass. 503. Demaris v. Van Leeuwen, 283 Mass. 169. Cronan v. Armitage, 285 Mass. 520, 526, 527. Beggelman v. Romanow, 288 Mass. 14. Tardiff v. Lynn Sand Stone Co. 288 Mass. 472. To find in § 4 of the Federal employers' liability act an express preservation of the so called contractual assumption of risk is to impute tautology to the act, for that doctrine is sufficiently preserved by the requirement of proof of negligence on the part of the defendant carrier or its "officers, agents, or employees."