46 N.Y.S. 76 | N.Y. App. Div. | 1897
The learned trial judge stated that he would assume that there was negligence in the management of the brig by those in charge of her at the time of the accident, but in granting the motion to dismiss the complaint he concluded as matter of law that the plaintiff was guilty of contributory negligence,, and that those in charge of the brig were fellow-servants of the plaintiff, and that for their negli-' genee as against the master he could not recover. In determining whether the disposition thus made was correct, the plaintiff, under the well-settled rule, is entitled to the most favorable inferences and deductions that can be drawn from the testimony and proofs.
Upon the question.-of defendant’s liability there was sufficient evidence to justify the inference that through his servants he had created a dangerous situation, into which plaintiff was induced to enter.' Without repeating all such evidence, it clearly appears that those on the brig made no provision, before she was moved or while she was in the act «of moving, to have any one upon the pier who could release the lines or hawsers; and that the manner of casting off the hawsers was such that, instead of the brig being under the control, either of the men on board of her or the tug which was engaged in pulling her out from the pier and up stream, her stern was pulled around, permitting her bow to swing in against the pier, so that an anchor weighing about 1,200 pounds, which was swaying and dangling from three to four feet below the cathead and reaching over the pier, hit the spiles, breaking a lamp post, scratching the dock, and taking off the arm of the plaintiff while he, with other boys, was engaged, at the request of those on board the brig, in the very act of casting off the stern line, There was evidence, therefore, from which the jury could have inferred that, by the management. of the brig, those on board of her had created a dangerous situation, which was perilous to all upon the pier, who, without notice or knowledge of such danger, might be reached by the anchor and the rigging pendent about the bow of the swinging, brig. It was fo.r the jury further to determine whether it was dangerous for a child of eleven years, which was the age of the plaintiff, to undertake to .cast off from a spile at the end of the pier, and within the line of - movement of the bow and swaying anchor, a nine-inch hawser which connected the stern of the brig to the pier, If such was dan
If there was a question of fact as to whether the plaintiff was 01-was not guilty of contributory negligence, then it was improper to-take that from the jury. The respondent, however, in upholding the ruling made by the trial judge, insists that the plaintiff,, as matter of law, was guilty of contributory negligence. In support of this contention he urges that the accident happened in broad daylight, and that the position of the vessel and her anchor was open and apparent to anybody who came upon the wharf; that the plaintiff saw her as he went on the wharf; that he was old enough to know that a moving anchor would hurt him if it struck him, and that he must keep out of the way ; and that when, some time before
We also regard, as without force, the argument that any negligence shown as against the master of the brig was that of fellow-servants of the plaintiff, and that the complaint was rightly dismissed on that ground, because we can think of no legal principle that can be invoked which would make a boy like this plaintiff, who never had any relation with the master or his employees beyond going to their assistance in an emergency, a fellow-servant of those who created the emergency. There certainly was no express hiring, and the mere gratuitous rendering of such a service did not impliedly create, as between the plaintiff and those on the brig, the relation of fellow-servants. As we think it was error, therefore, for the learned trial judge to so hold, and to determine as matter of law that the plaintiff was guilty of contributory negligence, it follows that there should be a new trial.
The judgment is accordingly reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., Williams, Patterson and Ingraham, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.