
    Louis Kaiser, as Administrator, etc., of Sidney Kaiser, Deceased, Respondent, v. Colin McLean, Appellant.
    
      Negligence — the la/nvplighter of a contractor for a railroad structure chasing a boy who ran on the tracks and was killed..
    Proof that a person employed toy a contractor, engaged in building an .elevated railroad structure, to light lamps at the work and to keep the boys away, chased a boy, upon the structure, away from it, and that the boy, between whom and such person, and on the east side of the railroad tracks, were a number of long timbers, the boy being upon the west and the employee upon the east side thereof, ran to the west through an opening in a wall guarding the railroad ’ tracks and was there killed by a train,' when he, being familiar with the situation, might with safety, have run in another direction as did his companions, does not create a liability upon the part of the contractor for the death of the boy.
    O’Brien, J., dissented.
    Appeal by the defendant, Colin McLean, from a judgment'of the Supreme Court in favor, of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of January, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of February, 1897, amending said judgment, and also from an order entered in said clerk’s office on the 1st day of March, 1897, denying the defendant’s motion for a new trial made upon the minutes. .
    
      Albert B. Boardman, for the appellant.
    
      Louis J. Vorhaus, for the respondent.
   Van Brunt, P. J.;

This action was brought against the appellant McLean and the Mew York Central and Hudson River Railroad Company for damages arising from the death of one Sidney Kaiser, deceased The appellant McLean was a contractor employed by the railroad company to build the elevated structure south of the Harlem river upon which its tracks now rest. The plaintiff’s intestate was struck by one of the company’s trains and killed on the 13th of August, 1894, at or near the intersection of Park avenue and One Hundred and Sixteenth street. As a part of the construction plant the appellant employed a machine, constructed of heavy timbers, called a traveler, which was moved along the road as the work progressed. It would appear that, in connection with this traveler, there were a number of long timbers lying north and south near the edge of the cut where the railroad tracks were. -These timbers were lying on the roadbed of Park avenue, on the east side of the railroad tracks. The stone wall, which formerly ran along the edge of the cut on each side of the railroad tracks, had been torn down at and in the neighborhood of One Hundred and Fifteenth street. The appellant employed one Hanafin as lamplighter. This witness testified that he was hired to keep the lamps lighted and to keep the boys away from his lamps. On the day in question, about seven o’clock in the evening, while some boys, including the deceased, were playing upon the logs mentioned, Hanafin came, with his lamps lighted, upon the structure. He put one of the lamps' down, and then, for the purpose of driving the boys .off the structure, he picked up something, some of the witnesses stating that it was a stone, and threw it at the boys. One witness states that he saw him chase the boys; that the other boys ran away, and that Hanafin ran after Kaiser and chased him right on the track. This same witness, however, states .■ that Hanafin was all the time on the east side of the logs, and the logs, therefore, were between him and the boys. Another witness states that Hanafin picked up a stick and the boy went through the opening of the wall and ran upon the tracks, and, a train coming along, he was killed.

Upon this state of facts the jury found a verdict in favor of the plaintiff; and from the judgment thereupon entered and from an order denying a motion for a new trial this appeal is taken.

It is difficult to see upon what theory the defendant can be held liable for the act of Hanafin, even if it was wrongful. There was no evidence that he was employed or authorized by his employer to commit any assault upon anybody in keeping his lamps lighted and the boys away from them. In order to hold a principal for the act of his servant, it must be shown that the act of the servant comes within the scope of his employment; and the master is not answerable for the willful wrong of the servant or. for any force or violence used by him unless he was authorized so to do, except, perhaps, in the case of a common carrier. In the case at bar there does not seem to be any proof whatever that Hanafin was authorized to do anything more than to prevent these boys from interfering with the lamps and to keep them burning, and any violence which he used towards the boys was a wrongful act upon his part for which the defendant is not responsible.

. But it seems to us that there is an additional reason why the defendant was not liable for the damage resulting from the killing of the plaintiffs intestate. It is true that one of the witnesses states, as already observed, that Hanafin chased the boy right upon the track. But it is manifest from the testimony in the case that this is absolutely untrue, as the same witness swears that Hanafin was on the east side of the logs, and hence that he could not have chased the deceased upon the track, because the logs were between him and the deceased. The evidence is positive in regard to this matter. It is undoubtedly true that Hanafin drove the boys' from the logs, but there was nothing in the world which compelled the deceased to go through the opening in the wall upon the railroad track. He could have gone in the direction in which the other boys went with perfect safety, and, being a resident of the neighborhood, he was acquainted with the situation, knew of the existence' of the tracks and of the passage of trains thereon. Under these circumstances, wrong cannot be imputed to the defendant appellant. Hanafin had the right to prevent these boys from interfering with the lights placed, there for the purpose of giving warning to the public of these obstructions and to keep the boys away from the structure; and if they, being wrongfully .there, in running away, went into danger, it is difficult to see upon what theory even Hanafin can be said to be responsible.

Upon the whole case, we are of opinion that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Rumsey and Patterson, JJ., concurred Parker, J., concurred hi the result; O’Brien, J., dissented.

Judgment reversed, new trial ordered, costs to appellant to abide event.  