O’Brien, J.:
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[289] gerous work for the plaintiff to engage in, it was evidence from which-negligence could be inferred on the part of those who invited or induced the plaintiff to enter upon the danger without warning, and rendered liable for the injuries sustained by the child those responsible for placing him in such position. When the brig commenced to-swing stern out, with the bow over the pier, it became necessary to-release the stern line; and thus it was fairly to be inferred that a dangerous emergency was present, requiring the assistance of some one on the pier to extricate the brig by loosing the stern line from the spile. It was in such an emergency, according to the plaintiff’s testimony,, that he was requested to undertake for the defendant, and for the protection of the defendant’s property,in the emergency thus existing, this dangerous work.' - We do not think it will be . seriously questioned that the defendant was liable for actions of the three employees in charge of the brig-who were at the time managing it in his business and for his benefit. Indeed, the- emergency made the act of the mate, or of the person who induced the plaintiff and the other boys to undertake the task, the act of the defendant. As there was, therefore, evidence from which the jury might infer that the dangerous situation created by the management of the brig was due to the defendant’s employees, and that the plaintiff was invited to enter upon a dangerous work in an emergency, without warning him of the danger or instructing him as to how it could be avoided, then for injuries received while engaged in such work the defendant might be held liable, unless the plaintiff contributed by his own negligence to the accident from which his injuries flowed.
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O’Brien, J.:
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[289] gerous work for the plaintiff to engage in, it was evidence from which-negligence could be inferred on the part of those who invited or induced the plaintiff to enter upon the danger without warning, and rendered liable for the injuries sustained by the child those responsible for placing him in such position. When the brig commenced to-swing stern out, with the bow over the pier, it became necessary to-release the stern line; and thus it was fairly to be inferred that a dangerous emergency was present, requiring the assistance of some one on the pier to extricate the brig by loosing the stern line from the spile. It was in such an emergency, according to the plaintiff’s testimony,, that he was requested to undertake for the defendant, and for the protection of the defendant’s property,in the emergency thus existing, this dangerous work.' - We do not think it will be . seriously questioned that the defendant was liable for actions of the three employees in charge of the brig-who were at the time managing it in his business and for his benefit. Indeed, the- emergency made the act of the mate, or of the person who induced the plaintiff and the other boys to undertake the task, the act of the defendant. As there was, therefore, evidence from which the jury might infer that the dangerous situation created by the management of the brig was due to the defendant’s employees, and that the plaintiff was invited to enter upon a dangerous work in an emergency, without warning him of the danger or instructing him as to how it could be avoided, then for injuries received while engaged in such work the defendant might be held liable, unless the plaintiff contributed by his own negligence to the accident from which his injuries flowed.
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 [290] the accident,, he was called upon to cast off the brig’s bowline, he was'told by a man on the dock to go away, that he would get hurt there. As to this latter testimony, the plaintiff denies having heard -such warning; but even if he did, lie was not injured at that time, "for, as the testimony shows,, he with the other boys went to another part of the pier and was there engaged in play,, and it was. some -time afterwards that, the dangerous emergency to which we have ^alluded having arisen, being suddenly called upon, he undertook to -comply with the request of the mate or those on board the brig to ■throw off the stern line. There is nothing to show, that the plaintiff knew there was any danger in complying with the. request; but the testimony is that lie had never before done such-work; that he had not observed the position of the anchor, and that' he had never before been on any pier or dock, except this' one on which he was hurt, and only a few times on that. We have, moreover, the evidence that scarcely any time elapsed between the request to remove the stern line and the crushing of the plaintiff’s arm; that he did not .see the anchor until it struck him, and that, in running to the spile . at .the east end of the pier and in casting off the- stern line therefrom, his back was necessarily towards the bow.of the brig and' the anchor. Having no knowledge, therefore, about' the movements of vessels, as to tlieir proper or improper handling, or as to whether the casting off of a line was right or wrong, or whether it was dangerous, these should not ah, as matters of. law,-be determined against the plaintiff, who, so far as his testimony shows, without- any notice or warning of danger or risk, ran on being requested to remove a line, in the act of removing which he received his injuries. Hor do we think there is any force in the suggestion that he should have looked, and if he had, that he 'would have seen the anchor was coming’.along over the pier; because, according to one of the witnesses, there was but the. briefest space of time between the call to remove the hawser,, which was. responded to'by the plaintiff and the other boys, and the time when the anchor struck the spile and crushed the •plaintiff’s arm; as'expressed by the witness, .the anchor came against the-spile with a rapidity like “ the click of a- watch.” We think, therefore, that the question of the' plaintiff’s contributory negligence was one of fact and should not. have been determined as a matter of law, because he was entitled to the benefit of. the rule, [291] which is sustained by many cases, that “ if the plaintiff is suddenly put into peril, without having sufficient time to consider all the eircnmstaneés, he is excusable for omitting some precautions or making an unwise choice under this disturbing influence; although, if his mind had been clear, he ought to have-done otherwise, especially if his peril is caused by the defendant’s fault.” (1 Shearm. & Redf. on Reg. § 89.) “A party who places another in peril cannot complain if he does not exercise the best judgment in extricating himself from such peril.” ( Voah v. Northern Cent. Ry. Co., 15 N. Y. 323.)
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.