ClaeksoN, J.
At the close of plaintiff’s evidence the defendant made a motion for judgment as in case of nonsuit. C. S., 567. The court below granted motion and in this we can see no error. The interesting-question arises on the record: What duty does the defendant owe to this volunteer boy 13 years of age? The general rule is thus laid down in Cooley on Torts, 4th Ed., Yol. 3, section 386, pp. 47 and 48: “One who voluntarily assists a servant at the latter’s request does not, as a
general rule, become a servant of tbe master so as to impose upon tbe latter, tbe duties and liabilities of a master towards sucb volunteer, or so as to render tbe master liable to third persons injured by sucb volunteer’s acts or negligence, while rendering sucb assistance. Sucb a volunteer assumes all tbe risks of tbe service upon which be enters and is only entitled to tbe protection due a trespasser. But if tbe servant has authority, express or implied, to employ assistants, tbe rule is otherwise, and tbe master is liable for tbe negligence of one employed by a servant who bad authority to employ assistants though be bad been forbidden to employ that particular person. Sucb implied authority might arise in case of some unforeseen emergency, which created a necessity for sucb assistance. And when a passenger is injured by tbe negligence of a volunteer, tbe master is liable, though tbe volunteer was called in by a servant without tbe knowledge or authority of tbe master, and tbe reason is that ‘when tbe master obligates himself to transport a person from one place to another safely and properly, and to protect him from injury from any source that human judgment and foresight are capable of providing against, and tbe master intrusts tbe performance of tbe duty responsible for their acts, whether negligent or malicious, and they continue in tbe line of their employment until their relation with tbe master is dissolved. Tbe specified duty of tbe employee in sucb case may be very limited, but tbe scope has assumed.’ So also, some courts bold that where a master intrusts bis servant with a dangerous instrumentality, sucb as an automobile, for use in bis business, and sucb servant permits another to use it in sucb business, tbe master is liable for tbe negligence of sucb other in tbe use thereof,” etc. Meacbam on Agency, Yol. 1, 2d Ed., sec. 1658, p. 1250. Restatement of tbe Law (Agency), sec. 485, pp. 1134 and 1135. Burdick’s Law of Torts, 4th Ed., “Harms that are not Torts,” secs. 84, 85 and 86. 39 C. J., “Master and Servant,” sec. 1459, pp. 1271-2;
Perkins v. Coal Co.,
189 N. C., 602;
Fore v. Geary,
191 N. C., 90;
Robinson v. Ivey and Company,
193 N. C., 805 (812);
Booth and Flynn v. Price,
183 Ark., 975; 76 A. L. R., 957;
Barrier v. Thomas & Howard Co.,
205 N. C., 425.
Speaking of tbe duty of tbe master to tbe servant, in
Marks v. Cotton Mills,
135 N. C., 287 (291), is tbe following: “When any injury to him results from one of tbe ordinary risks or perils of tbe service, it is tbe misfortune of tbe employee and be must bear tbe loss, it being
damnum absque injuria;
but tbe employer must take care that ordinary risks and perils of tbe employment are not increased by reason of any omission on bis part to provide for tbe safety of bis employees. To tbe extent that be fails in this plain duty, be must answer in damages to bis employee for any injuries tbe latter may sustain which are proximately caused by bis negligence.”
The general principles of “Emergency Employees” is stated in 76 A. L. R., p. 971, citing authorities: “An emergency within the meaning of the rule must be a sudden and unexpected emergency. ... If the servant requesting assistance can do the work himself, there is no emergency authorizing him to employ an assistant. ... It has, however, been held that the bare fact that it is possible to proceed without the services of the person employed is not in itself determinative that there is no necessity for the employment. . . . Whether an emergency exists is ordinarily a question of fact for the jury. . . . While ordinarily the question is for the jury, the court can say whether the evidence is sufficient to support a finding that an emergency existed.”
“In
Howard v. Oil Co.,
174 N. C., 653, it is said: Tt is well recognized that, although the machinery and place of work may be all that is required, liability may, and frequently does, attach by reason of the negligent orders of a foreman, or boss, who stands towards the aggrieved party in the place of vice-principal.’ ”
Robinson v. Ivey and Co., supra,
p. 812. As to the duty and responsibilities to infants, see
Pettitt v. R. R.,
186 N. C., 9;
Hoggard v. R. R.,
194 N. C., 256.
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ClaeksoN, J.
At the close of plaintiff’s evidence the defendant made a motion for judgment as in case of nonsuit. C. S., 567. The court below granted motion and in this we can see no error. The interesting-question arises on the record: What duty does the defendant owe to this volunteer boy 13 years of age? The general rule is thus laid down in Cooley on Torts, 4th Ed., Yol. 3, section 386, pp. 47 and 48: “One who voluntarily assists a servant at the latter’s request does not, as a
general rule, become a servant of tbe master so as to impose upon tbe latter, tbe duties and liabilities of a master towards sucb volunteer, or so as to render tbe master liable to third persons injured by sucb volunteer’s acts or negligence, while rendering sucb assistance. Sucb a volunteer assumes all tbe risks of tbe service upon which be enters and is only entitled to tbe protection due a trespasser. But if tbe servant has authority, express or implied, to employ assistants, tbe rule is otherwise, and tbe master is liable for tbe negligence of one employed by a servant who bad authority to employ assistants though be bad been forbidden to employ that particular person. Sucb implied authority might arise in case of some unforeseen emergency, which created a necessity for sucb assistance. And when a passenger is injured by tbe negligence of a volunteer, tbe master is liable, though tbe volunteer was called in by a servant without tbe knowledge or authority of tbe master, and tbe reason is that ‘when tbe master obligates himself to transport a person from one place to another safely and properly, and to protect him from injury from any source that human judgment and foresight are capable of providing against, and tbe master intrusts tbe performance of tbe duty responsible for their acts, whether negligent or malicious, and they continue in tbe line of their employment until their relation with tbe master is dissolved. Tbe specified duty of tbe employee in sucb case may be very limited, but tbe scope has assumed.’ So also, some courts bold that where a master intrusts bis servant with a dangerous instrumentality, sucb as an automobile, for use in bis business, and sucb servant permits another to use it in sucb business, tbe master is liable for tbe negligence of sucb other in tbe use thereof,” etc. Meacbam on Agency, Yol. 1, 2d Ed., sec. 1658, p. 1250. Restatement of tbe Law (Agency), sec. 485, pp. 1134 and 1135. Burdick’s Law of Torts, 4th Ed., “Harms that are not Torts,” secs. 84, 85 and 86. 39 C. J., “Master and Servant,” sec. 1459, pp. 1271-2;
Perkins v. Coal Co.,
189 N. C., 602;
Fore v. Geary,
191 N. C., 90;
Robinson v. Ivey and Company,
193 N. C., 805 (812);
Booth and Flynn v. Price,
183 Ark., 975; 76 A. L. R., 957;
Barrier v. Thomas & Howard Co.,
205 N. C., 425.
Speaking of tbe duty of tbe master to tbe servant, in
Marks v. Cotton Mills,
135 N. C., 287 (291), is tbe following: “When any injury to him results from one of tbe ordinary risks or perils of tbe service, it is tbe misfortune of tbe employee and be must bear tbe loss, it being
damnum absque injuria;
but tbe employer must take care that ordinary risks and perils of tbe employment are not increased by reason of any omission on bis part to provide for tbe safety of bis employees. To tbe extent that be fails in this plain duty, be must answer in damages to bis employee for any injuries tbe latter may sustain which are proximately caused by bis negligence.”
The general principles of “Emergency Employees” is stated in 76 A. L. R., p. 971, citing authorities: “An emergency within the meaning of the rule must be a sudden and unexpected emergency. ... If the servant requesting assistance can do the work himself, there is no emergency authorizing him to employ an assistant. ... It has, however, been held that the bare fact that it is possible to proceed without the services of the person employed is not in itself determinative that there is no necessity for the employment. . . . Whether an emergency exists is ordinarily a question of fact for the jury. . . . While ordinarily the question is for the jury, the court can say whether the evidence is sufficient to support a finding that an emergency existed.”
“In
Howard v. Oil Co.,
174 N. C., 653, it is said: Tt is well recognized that, although the machinery and place of work may be all that is required, liability may, and frequently does, attach by reason of the negligent orders of a foreman, or boss, who stands towards the aggrieved party in the place of vice-principal.’ ”
Robinson v. Ivey and Co., supra,
p. 812. As to the duty and responsibilities to infants, see
Pettitt v. R. R.,
186 N. C., 9;
Hoggard v. R. R.,
194 N. C., 256.
In the present case, we have no factual situation which necessitates the master to warn or instruct the volunteer. The plaintiff was not suddenly exposed to any imminent danger in the unforeseen emergency. He, at the request of the foreman, undertook to carry the hammer in his own way in the performance of, not an unusual, but an ordinary and simple task. We are not dealing with a servant that the foreman had the right to discharge for nonperformance of a duty, and whose command, the servant was called upon to obey. The plaintiff was a volunteer. There seemed to be no unforeseen emergency. The foreman could have taken or pitched the hammer to the workman, or he could have come down for it. The plaintiff testified: “The carpenter on top of the house dropped his hammer and he asked me to get his hammer.” Foreman Black “was the one that told me to take it up.” It was an 8-foot story, Black said, “Boy, take that hammer up to the carpenter.” Plaintiff’s brother, Edgar Reaves, testified, “There was not any ladder there to get up on the house at that time, I went
up at
the corners with braces, climbed up at the corners. . . . That is the way they went up and down. . . . The braces within that space were about 3% feet apart. There were two braces, you stepped on them and grabbed a joist and pulled yourself up. . . . That’s what they were put there for.” The window that plaintiff went up was about 15 feet from the way provided. There was nothing that was defective that caused plaintiff to fall. He selected his own way. “I started to climb up through a window and got up in the window and was climbing up to reach a
joist to band Mr. Armstrong the hammer and I slipped and fell, my hand slipped off the joist.” The thing that plaintiff undertook to do was not more dangerous than what any man or a 13-year-old boy is doing daily. The boy rode there on a horse and the climbing to hand the hammer up was perhaps no more dangerous than mounting the horse. The misfortune was that he slipped and fell. It is a matter of common knowledge and to the credit of our people that when called upon to help, the willingness in which they respond. The nature of the work called upon to perform may, in certain cases, entail liability on the foreman and
respondeat superior.
The boy’s act was commendable and the accident unfortunate. In law, we cannot hold the defendant liable. In the realm of good morals, how far defendant should have helped repair the injury is beside our jurisdiction. N. C. Code, 1931 (Michie), sec. 5032, is not applicable to the facts in this case.' We think the judgment of the court below should be
Affirmed.