
    JAMES RYAN, by Catharine Ryan, Guardian, Plaintiff and Respondent, v. THE HUDSON RIVER RAILROAD COMPANY, Defendant and Appellant.
    Where the acts of a servant are willful, and beyond the scope and limit of his employment or agency, the principal is not liable for the same.
    In actions to recover for negligence, the burden of proving,—First. That the plaintiff was free from negligence on his part that contributed towards the injury; and, Second. That the defendant was guilty of negligence that produced the same,—rests upon the plaintiff; and on his failure to establish the same, the complaint should be dismissed by the court. There is, in such case, no question for the jury..
    
      Decided February 4, 1871.
    Appeal from a judgment.
    The cause was tried in April, 1870, before the court and a jury, and resulted in a verdict in favor of the plaintiff for the sum of fourteen hundred and fifty dollars. Upon the coming in of the verdict, the defendant moved upon the court minutes for a new trial, which motion was denied, and afterwards judgment was perfected upon said verdict for the plaintiff. Defendant appealed from the order denying the motion for a new 'trial, and from the judgment. The evidence that was considered in the review of the case on appeal appears in the opinion of the court. At the close of the evidence of the plaintiff, the defendant moved the court to dismiss the complaint on the grounds :
    
      First. That if the driver saw the child, and used his whip in the manner testified to by the plaintiff, that it was without the agency of the defendant, and the defendant is not responsible.
    
      
      Second. Assuming that the driver did not see the boy, that it necessarily followed that the whip was thrown back by him in the ordinary course of his business, to be used in the proper driving of his horses, and the catching of the whip about the boy, either by the loop formed by the lash and the whip being used in the driver’s hand, or by the lash winding about the child, was the merest accident, showing no act which the court could properly say was negligence on the part of the person who was, at the time, the agent of the defendant.
    The motion was denied, and the defendant excepted.
    At the close of the evidence in the case, the defendant renewed the motion to dismiss the complaint upon the grounds first stated, and upon the ground that it appeared that the negligence of the plaintiff caused or contributed to cause the injury.
    The motion was denied, and the defendant excepted. The defendant’s counsel then requested the court to charge the jury :
    1. That upon the evidence the plaintiff has no cause of action.
    Which the court declined to charge, and the defendant’s counsel excepted.
    
      2. That if the jury do not find that the driver was negligent in respect to the circumstances relating to the injury, the plaintiff has no cause of action.
    Which the court charged.
    3. If the jury are satisfied from the evidence that the plaintiff was negligent to any extent, and his negligence concurred in producing the injury, the plaintiff cannot recover.
    Which the court charged.
    4. That the act of the driver in using his whip, under the circumstances, as shown from the evidence, was without the scope of his employment, and for which the defendant is not responsible.
    To which the court said, “ I will charge that, with this qualification, that it is a question for the jury to determine and the counsel for the defendant excepted to the refusal of the court to charge as requested ; also, to the instruction as given.
    
      5. If the jury shall find that the act of the driver was willful, and without the limit of his agency, and with intent to drive the boy away, it was unauthorized by the defendant, and the plaintiff cannot recover.
    Which the court charged.
    The foregoing statement comprises the important exceptions in the case.
    
      Hirsch & Newcombe, attorneys for plaintiff and respondent.
    
      Frank Loomis, attorney for appellant.
    
      Theodore R. Strong, of counsel.
   By the Court.—Spencer, J.

The plaintiff in this case was a boy about twelve years of age when he testified on the trial, and was about ten years of age at the time of the accident. His testimony in regard to the circumstances was not very clearly given, and is materially contradicted by other witnesses. If the jury based there verdict upon his testimony as to the action of the driver (the alleged servant of defendant), in the premises, this judgment should most certainly be reversed, for he (the plaintiff), testified (substantially) that the driver saw him distinctly, and drew the whip upon and struck him. That the end of the lash was in his (driver’s) hand with the butt end of the whip, and when he struck plaintiff, he let the lash go and it wound around plaintiff’s neck, and he was thus caught and pulled along, and while he (plaintiff) was down on the track, the lash became loosened. That he (driver) jerked it (the whip) and threw him under the car. The defendants could not be held for the acts of the driver, . of this willful and wicked character. This question was raised by the defendant’s counsel on the trial, in the motion for a dismissal, and also in the requests to the court to charge; and the court charged the jury especially and clearly on this point, and it is proper to presume that they followed the direction of the court in the premises and disregarded the testimony of the plaintiff in regard to the facts attending the accident. I use the word accident, for, upon a review of ail the testimony, I conclude it was an accident,—an event happening without either negligence or design on the part of the defendant’s servant, and certainly without design on the part of the plaintiff. I cannot resist the impression that affects my mind from the testimony in the case, that plaintiff was guilty of negligence, in running alongside of the car and so near to the same that he could reach out and catch hold of it. The other boys were intent upon mounting the car, as appears from plaintiff’s testimony, and the facts in the case convince me that such was plaintiff’s intention. At any rate, I deem his action in the premises as very hazardous to, and negligent of, his own personal safety. I think the jury did not consider this point in the case. But - assuming that they disregarded the testimony of plaintiff as to the willful action of the driver, and Were correct in their conclusion that plaintiff was not guilty of any negligence that contributed to his injury, I cannot realize how they could reach the conclusion that the driver was guilty of negligence in the premises. I think his statement as to his action, and particularly as to the use of his whip, must be received as the true version of the facts attending this event, so far as he (the driver) in any way, participated therein ; for his testimony is not contradicted by any other witness, excepting the plaintiff, whose statement mnst have been ignored by the jury. How the driver’s testimony establishes that he used his whip with care, and in the ordinary way, without intending to hit the plaintiff or anyone else. That he did not see the plaintiff, nor know that he was .near, or that he was injured at the time. That he never let go the end of the lash, which he hek\with the butt end of his whip-stock, in his hand, striking out or back with the whip in that condition, when it was suddenly twitched or jerked from his hand; and he stopped the car as soon as possible, and after the accident he learned, for the first time, that the boy had been thrown down and injured. From his testimony, and from all of the witnesses, except the plaintiff, I cannot find any negligence established, that occasioned or contributed to the injury. The burden of proving or establishing such negligence on the part of the defendant, was upon the plaintiff, and I am of the opinion,, that he failed to furnish any evidence proving the same, and the motion to dismiss the complaint should have been granted.

The judgment should be reversed and a new trial ordered, costs to, abide the event.  