
    Charles F. Sharp, as Administrator, etc., of George Sharp, Deceased, Appellant, v. Erie Railroad Company, Respondent.
    INegligence— liability of a railroad company for the shooting, dyj its employee, who is also a police officer, of a person stealing a ride.
    
    In an action brought to recover damages resulting from the death of the plaintiff's intestate, it appeared that the intestate was stealing a rihe upon one of the ¡defendant’s freight trains as it came into the village of Salamanca; that, his ^presence being discovered, he jumped from the car and : was chased by one Wheeler; that after he and Wheeler had passed beyond the defendant’s right of way, Wheeler called upon him to stop, and upon hisj failure to do so, Wheeler fired a revolver, the bullet from which struck and ¡killed the intestate. It. was assumed that Wheeler’s-act was negligent and not willful.
    Wheeler was a policeman of the village of Salamanca, a constable of the town of Salamanca, and a deputy sheriff of the county. He was albo in the employ of the defendant, with instructions to protect “the company’s-interest on the right «of way, to' keep tramps from trains, and look after robberies that might occur at stations and on freight cars, in the yards and on the tracks and in the station, and look after persons in an intoxicated condition on the company’s property, and generally to look after crimes committed against the railroad company on the right of way.”
    Testimony was also given that it was a part of his duty as an employee of the defendant.to drive and keep trespassers from the company’s property; that his duties were not limited to keeping trespassers off the trains where it was to the company’s interest to keep them out' of the yard; that this was largely committed to his discretion.
    
      Held, that as the intestate had committed a misdemeanor in Wheeler’s presence, it was his duty, as a public officer, to arrest him and that, as the defendant had no authority to forbid him or.restrain him from making such an arrest, it was not liable for the shooting.
    Houghton, J., dissenting.
    Appeal by the plaintiff, Charles F. Sharp, as administrator, etc., of George Sharp, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chemung on the 13th day of January, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Chemung Trial Term, and also from an order entered in said clerk’s office on the 11th day of December, 1902, denying, the plaintiff’s motion for a new trial made upon the minutes.
    The defendant operates a railroad through the village of Salamanca, in the town of Salamanca, and the county of Cattaraugus, in the State of Hew York. Plaintiff’s intestate on the 16th day of Hay, 1901, was stealing a ride upon one of the defendant’s freight cars as it came into the said village of Salamanca. Being warned, he jumped from the car and ran from the defendant’s right of way into an. adjoining piece of property. He was followed by one Wheeler, who chased him from the defendant’s right of way, calling upon him to stop. After both he and Wheeler in this chase had passed beyond the defendant’s right of way, Wheeler called upon him to stop, and upon his failure to do so, Wheeler fired a' revolver. The bullet from the revolver struck the plaintiff’s intestate and killed him. At this time Wheeler was a policeman of the village of Salamanca, a constable of the town of Salamanca, and deputy sheriff of the county. He was also in the employ of the defendant with instructions to protect “ the company's interest on the right of way, to keep tramps from trains, and look after robberies that might occur at stations and on freight cars, in the yards and - on the tracks and in- the station, and look after persons in an intoxicated condition on the company’s property, and generally to look after crimes committed against the railroad cojmpany, on the right of way. It was part of his duty to drive off and keep off trespassers from the company’s property. Mr. Wheeler’s duty was not limited to keeping trespassers off the trains where it was to the company’s interest to keep them out of the yairds; that was largely committed to his discretion.” This action is brought against the defendant upon the ground that Wheeler was the servant of the defendant, for whose wrongful or negligent act the defendant is responsible. After the plaintiff’s evidence was in, the trial court dismissed the complaint, and from the judgment entered upon such dismissal,, and from the order denying plaintiff’s motion for a new trial, this appeal is taken.
    
      Frank C. Ogden and D. C. Robinson, for the appellant.
    
      Frederick Collin, for the respondent.
   Smith, J.:

The act of Wheeler was negligent, not willful. The natural inference is that he shot to- frighten without intent to wound. Plaintiff’s intestate had committed a misdemeanor in Wheeler’s presence. (Penal Code, § 426.) As a peace officer of the town in which this-shooting occurred, he was required to apprehend him and arrest him whether on or off the defendant’s right of way, and the failure to do so would have rendered him liable to prosecution as for a misdemeanor. (Penal Code, §§ 117, 154.) In making this arrest then, was Wheeler acting as a public officer with public duties, or was-he acting as the servant of-the deféndant? If as the servant of the-defendant,-for his negligence in so acting the defendant is clearly liable. ' If as a peace officer of the town, the defendant is not liable for his negligence.

The learned trial judge properly held, we think, that Wheeler’s act in making this arrest was not the act of defendant’s servant. Wheeler’s duty.to make the arrest was entirely independent of his duty to defendant. Moreover, defendant had no authority to forbid it- or to restrain it. It would be a legal anomaly to hold one responsible for the act of another which he was without authority to forbid and without power to prevent. This want of power to prevent would seem conclusively to negative any inference that the act was done by authority of the defendant. The employment of a public peace officer by a private person assumes on the one hand the existence of certain powers and duties as a public officer, and correlatively is conditioned upon the existence of public duties to be exercised even against • the will of the employer. In Murray v. Dwight (161 N. Y. 301) it is held that a truckman who transports a traveler’s baggage or a merchant’s goods to the railroad station, though hired and paid for service by the owner of the baggage or goods, is not the servant of the person who thus employs him. If this be true where the service is within the direct control of the employer, how much stronger should be the right of immunity where the employment is of a public officer whose acts in the public service are beyond the employer’s control. Wheeler’s employment by defendant was to patrol the yards that he might keep off trespassers and that he might protect the company’s property by more readily detecting crimes for which, after detection, it was his official duty to arrest.

The rule of law here stated is not without authority. In Healey v. Lothrop (171 Mass. 263) a special officer was appointed at the instance of the keeper of a place of amusement in Boston for the protection of his private property, and paid for by him under a law of that State. It was held that in committing an assault and battery while in the performance of his duty, he was not the servant of the keeper of the place of amusement. While this decision wras made under a law of Massachusetts, the reasoning is just as applicable to the case at bar. In fact, in the case at bar the facts would seem to give greater right to immunity, because in that case a policeman was specially appointed to protect the property of the one sought to be held liable, while in the case at bar Wheeler was the duly elected constable of the town for no special purpose.

In Dickson v. Waldron (135 Ind. 521), where a special policeman had been called on by the proprietor to quell a'disturbance in a theatre, the opinion, in treating of his act as a policeman or as the servant of the proprietor, reads: “But it is said that John M. Eh ley was a policeman and,, therefore, appellants are not responsible for his attack upon appellee. Whether at the time of the injuries complained of Kiley was acting as a policeman or as agent of appellants must' depend upon the acts done by him. Because he was a police officer it does not follow that all his acts were those of a policeman, and because he was an agent of appellants it does not follow that all his acts were those of such agent. Even if he were a regular patrolman, called in off the street by appellants or their agents to aid in enforcing the regulations of the theater, he would, for such purpose, be only an agent of appellants, and for his conduct as such agent, within the scope of his employment, appellants would be responsible. If, however, after entering the theater, he should discover appellee in the act of violating a criminal law of the State or a penal ordinance of the city, and should proceed to arrest him for it, such act of arrest would be that of a police officer. And if such arrest were made on the officer’s own motion, without direction, express or implied, on the part of appellants, then appellants would not be responsible.” In Jardine v. Cornell (50 N. J. L. 486) a policeman had been called in a train to assist in ejecting a passenger, and it was there held: “ If the conduct, of a passenger unlawfully persisting in riding in a railroad car is such as to constitute him a disorderly person, a policeman may by virtue of his office arrest such disorderly character, notwithstanding the fact that such policeman was originally called in as an agent of the company, and for violence incident to such arrest, the company and its agents are-not liable. ■* * *

“ When a city police officer takes by force a disorderly person from the scene of disorder to the police station, such act will be presumed to have been done by virtue of his official character, notwithstanding the fact that prior to such disorderly conduct the officer was in law the agent of the defendant, and for force used in making said arrest the defendants are not liable.”

In Hershey v. O'Neill (36 Fed. Rep. 171) it was held that a special patrolman appointed under section 269 of chapter 410 of the Laws of 1882, as amended by chapter 180 of the Laws of 1884, and whose services were paid for by the proprietor of a store, was not the agent of such proprietor for whose acts in making a false arrest the proprietor was liable. In Brill v. Eddy (115 Mo. 604) the opinion in part reads: “It is no uncommon thing for corporations and individuals to employ duly appointed police officers to watch their property, and if such an officer so employed make an arrest for disorderly ■ conduct the presumption/ is that he acted in his official capacity as the agent of the State, and not as the agent of his employer. Being an officer whose duties are prescribed by law, it should be presumed, until the contrary is made to appear, that his employment contemplates only the exercise of such powers as the law confers upon him.” (See, also, Tolchester Beach Improvement Co. v. Steinmeier, 72 Md. 313.)

The case of Kastner v. L. I. R. R. Co. (76 App. Div. 323) holds no contrary rule of law. In that case it is not clearly indicated, what were the duties of the special officer who was held to be the agent of the company, nor under what statute he was appointed. He was acting under specific instruction from the company to make arrests of persons caught stealing coal. ' It was, therefore, held that in making such an arrest he was acting as the agent of the company. The question does not seem there to have been raised as to the public official duty which such officer had, if any, to make an arrest for a crime committed.

We have examined the other questions raised by the appellant and find no reason therein for disturbing the conclusion of the trial court. , ,

The judgment and order should be affirmed.

All concurred, except Houghton, J., dissenting.

Judgment and order affirmed, with costs.  