#### Brown *v.*Wood.

In an action to recover damages for personal injuries, caused by the alleged negligence of defendant, the evidence was to the effect that plaintiff, a deckhand on a steam tow-boat, was sent on shore in the morning, before it was light, to loosen ropes which held the boat to the shore ; after three of the ropes were loosened, the last one became foul on the deck, and, on failing to clear it, after a minute or more, the captain ordered it to be loosened. The plaintiff, with an ax, cut inside the knot by which it was fastened to the tree, causing it to rapidly unwind, and strike and break his leg. The plaintiff testified that, if the rope had been cut forward of the knot, it would have sprung away from him and towards the boat. Held, that the contributory negligence of the plaintiff was the cause of the injury, and that it was not error to enter a non-suit.

Oct 24, 1888.

Error, No. 102, Oct. T. 1888, to C. P. No. 1, Allegheny Co., to review a judgment of non-suit in an action on the case by Harry Brown against John A. Wood and Samuel L. Wood, trading as John A. Wood & Son, at March Term, 1886, No. 358.

The declaration contained three counts, alleging that the injury *116was the result of the captain’s negligence, i,in ordering plaintiff to cast off the line after it got in a dangerous condition; 2, in omitting to relieve the line; and, 3, in permitting the line to get twisted and fouled. The plea was not guilty.

At the trial, before Bailey, J., it appeared by the evidence that the plaintiff was a deck-hand on the steam tow-boat *“*John A. Wood;” that, on February 16,'1884, this boat, with a fleet of eighteen tow-boats, and two barges of coal, had tied up for the night, on the north bank of the Ohio River, near Shawneetown, Indiana. In the morning, before it was light, the plaintiff was ordered by the captain to go ashore and cast off the lines which held the fleet to the shore, and was given an ax with which to cut any of them, if necessary. The plaintiff cast off all the lines but one. The last one on which they were “ swinging out ” was found to be “ foul ” on the deck so that it was impossible “ to pay it out ” as the fleet accompanied the current. The captain had notice of this. It could then have been cast off or cut with less danger. The captain ordered them to clear up the line on the deck. Failing to accomplish this, the captain sounded the bell. This was a minute or more after he had notice that the rope was foul. The defendant, at the sound of the bell, cut the rope inside the knot by which it was fastened to the tree, causing it to rapidly unwind, and strike and break his leg.

In his direct examination, the plaintiff testified: “ Q. You heard the bell tap; what did that mean? A. To let go. Q. That was a signal to let the line go? A. To let the line go. Q. I wish you would explain precisely what the meaning of that signal was? A. That signal means for to let go what is left fast. Q. Did it mean anything more than merely to let go. A. That is all, sir ; didn’t mean anything more than just to let go. Q. What did you do ? A. I picked up the ax. Q. What was the condition of this line at this time ? A. There was quite a strain on it and I was getting a little scared, afraid it would part; and, in picking up the ax, I made a stroke at it, intending to hit it in front of the knot and somehow or other got it behind. Q. You hit it behind the knot ? A. Yes, sir. Q. What happened then? A. I was knocked down.

In his cross-examination, he testified: *“ Q.*What did the mate send you ashore to do? A. To go ashore and let go the lines ? Q. You mean by letting go the lines, to loose the lines from their fastenings on the shore, so the lines could come aboard and the boat get away? A. Yes, sir. Q. Did you take this ax there with you ? A. Yes, sir. Q. Flow did you get ashore? A. In a skiff. Q. What did you take the ax ashore for? A. For in case we couldn’t untie the lines to cut them. Q. Then you were given this ax for the purpose of cutting a line, if, in your judgment, you saw it was impossible to untie it ? A. Yes, sir. Q. You were to be the judge, when you got ashore and were casting off the line, whether you would untie it or whether you would cutit, were you not ? A. Yes, *117sir.....Q. Then you say the bell rang, which meant to let go the last line? A. Yes, sir; to let go the last line. Q. What did you do ? A. I went to let go the other line. Q. Untie it, how ? A. I couldn’t untie it. I reached over for the ax and cut it. Q. Your judgment was you hadn’t time to untie it ? A. Yes, sir. Q. There was too much strain on it to untie it ? A. There was too much strain on it to untie it. Q. Then you reached for the ax ? A. Yes, sir. Q. That is what you had the ax for? A. Yes, sir. Q. You were to exercise your judgment, to cut it or untie it as you saw it? A. I couldn’t untie it. Q. You were to decide that question for yourself? A. I don’t know whether I would decide that question for myself or not. Q. You did decide it; you decided to cut the line? A. Yes, sir. Q. You took the ax, and what did you do ? A. I cut it. Q. Where did you cut it ? A. Cut it right behind the knot. I intended to cut it in front of the knot, and somehow or other the ax went through my hand and cut between the knot and the tree. Q. What you strove to do was to cut it forward of the knot? A. Yes, sir.....Q. Why did you try to cut it forward of the knot ? A. To avoid *danger.....Q.*You say you cut it there to avoid danger? A. Yes, sir. Q. Was it less dangerous to cut it forward of the knot than back ? A. Yes, sir; less danger. Q. Why? A. Because it wouldn’t fly towards this way. Q. It would fly from you towards the boat ? A. Yes, sir.”

On the conclusion of the plaintiff’s case, the court entered a compulsory non-suit, which it subsequently refused to take off.

*The assignments of error*specified the action of the court, 1, in entering judgment of compulsory non-suit, and, 2, in refusing to take it off.

*William S. Pier,*with him *W. M. Watson,*for plaintiff in error.

The defendant was negligent, 1, in not ordering the line cast off or cut immediately on its being brought to the captain’s knowledge that the line was “ foul ” and could not be “ payed out; ” and, 2, in commanding the plaintiff, whose duty it was to obey without question, into a position of unusual danger without notice of his peril.

There is nothing in the evidence to show that the plaintiff was guilty of contributory negligence. The evidence is merely that the plaintiff, while frightened and excited by the sudden discovery of the dangerous position into which defendants, by their captain, had sent him, erroneously cut' the rope in a place where he did not mean to. There is no admission that he intentionally cut the rope at the place it parted. Even if there were, it would then be within the ruling of Schall *v.*Cole, 107 Pa. 1.

The captain was a vice-principal, and his negligence was the negligence of the defendant. Lewis *v.*Seifert, 116 Pa. 628; Mullan *v.*Steamship Co., 78 Pa. 25 ; Hass *v.*Steamship Co., 88 Pa. 269.

*118Nov. 5, 1888.

*Knox & Reed,*for defendants in error,

not heard. — The plaintiff’s own testimony clearly convicts him of contributory negligence.

The alleged negligence of the captain was not the proximate cause of plaintiff’s injuries.

The captain was a fellow-workman of the plaintiff, and the company was not liable for any negligent act committed by him, whereby one of the crew was injured. Quinn *v.*N. J. Lighterage Co., 23 Fed. R. 363; Davis *v.*Central Vermont R. R., 45 Am. R. 593; s. c. 55 Vt. 84; Flike’s Case, S3 N. Y. 549; Hoke *v.*St. L. R. R., 11 Mo. Ap. 574; Wilson *v.*Merry, 1 L. R. S. & D. Ap. C. 326; Crispin w. Babbitt, 81 N. Y. 516; Hass *v.*Steamship Co., 88 Pa. 269.

Per Curiam,

As there was no negligence proved in this case, except on the part of the plaintiff, the court properly directed a non-suit.

The judgment is affirmed.