I am of opinion that the court erred in instructing the jury, if they found that the plaintiff and the captain of the lighter, which had on board hay belonging to the plaintiff who had come to the dock for the purpose of removing it, were engaged in a joint enterprise in handling, managing and moving the lighter from the end of the dock across the slip to another place of mooring, then any negligence on the part of the captain would be imputable to the plaintiff and he would not be entitled to recover. In the circumstances I think there was no joint enterprise between the captain of the lighter and the plaintiff. The plaintiff was merely there to receive his hay from the captain of the lighter; and the captain having determined to move the lighter from the end of the pier across the slip, before allowing the removal of the hay, and appearing to be unable to handle the lighter alone, the plaintiff volunteered to give him an assisting hand and boarded the lighter for that purpose only. If the instructions were erroneous, manifestly they were prejudicial to the plaintiff. The only possible theory on which the error could be overlooked would be if the evidence was insufficient to take the case to the jury on the issues with respect to the plaintiff’s freedom from contributory negligence and the defendant’s negligence. One Liebman, a witness called for the plaintiff, testified that the captain of the defendant’s tug was duly and timely warned of the danger of a collision with the lighter, on board of which the plaintiff was working, if he continued on his course without affording those in charge of the lighter an opportunity *440to change her position, and there is evidence tending to show that this warning was not heeded. The plaintiff testified that he was engaged at the time of the collision in turning the winch in assisting in changing the location of the lighter. I think the evidence required the submission of those issues to the jury.
I am of opinion, therefore, that the judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Smith and Greenbaum, JJ., concur; Mebrell and Dowling, JJ., dissent.