
    George L. Baber, by Guardian, etc., App’lt, v. The Broadway and Seventh Avenue Railroad Company, Resp’t
    
      (New York Common Pleas, General Term,
    
    
      Filed November 5, 1894.)
    
    1. Master and servant—Liability—Tort.
    The rule respondeat superior obtains though the servant’s conduct, while acting within the scope of his authority, was wanton and reckless, unless the exercise of authority was a mere pretense for the accomplishment of some independent wrong.
    2. Same—Authority.
    Proof of express authority to the defendant’s driver to eject a trespasser from the car is not required.
    3. Same—Negligence—Contributory.
    Where one person, through the fault of another, is forced to assume a perilous alternative to escape other impending danger, negligence cannot he imputed to him.
    Motion for a new trial upon exceptions taken to the dismissal of the complaint and directed to be heard in the first instance at general term.
    
      Action to recover damages for personal injuries sustained through the conduct of the defendant’s servant in the course of his employment.
    Lamb, Osborne & Petty (Gilbert D. Lamb, of counsel), for app’lt; Root & Olark, for resp’t.
   Bischoff, J.

When the trial judge directed the dismissal of the complaint it sufficiently appeared from the evidence that the plaintiff sustained his injuries through the fault of the defendant’s drivér, and that the plaintiff was free from contributory negli: gence. The conduct of the driver, though wanton, was in the course of his employment.

On the evening of April 9, 1891, the plaintiff, a newsboy, 11 years of age, without molestation by-the driver, who was standing close by, boarded the front platform of the defendant’s car, which had come to a stop at Twenty-fourth street and Seventh avenue. His object in so doing was to supply a passenger, who had beckoned him, with a newspaper. While the plaintiff was making the change of the coin given him by the passenger, the car started up and was under considerable headway as it approached Twenty-third street. At this point the lad asked the driver to stop the car to enable him to alight. The request was refused, the driver at the same time ordering the plaintiff to “jump” off the car. Twice the plaintiff repeated his request, each time with the same result. The last time the dri ver’s command to “jump” was accompanied by gestures manifesting anger —the stamping of his foot and reaching forward as if about to seize his lash or whip, which at the time was hanging over the dashboard. Fearful of being beaten off if he remained, yet appreciating the risk of injury if he alighted from the moving car, the plaintiff leaped, fell and so sustained- the injuries of which he complained.

The plaintiff was a trespasser, but, even so, the fact did not lawfully expose him to the use of excessive force or means of ejecting, him which were unnecessarily menacing to his life or limb. Amato v. Sixth Ave. R. R. Co., 59 St. Rep. 674; 29 N. Y. Supp. 51, and the rule respondeat superior -obtains though the servant’s conduct, while acting within the scope of his authority, was wanton and reckless, unless the exercise of authority was a mere pretense for the accomplishment of some independent wrong. Hoffman v. H. Y. C. & H. R. R. R. Co., 87 N. Y. 25.

Proof of express authority to the driver to eject a trespasser was not required. The authority of the servant to protect his master’s premises from the intrusion of third persons is an incident of ordinary employment. Hence the fact of such authority is inferable from the fact and character of the employment. Hoffman v. N. Y. Cent. & H. R. R. R. Co., supra; Wood’s Master & Servant, § 279, etc. If the driver of the defendant’s car were sued'for an assault for having ejected the plaintiff, without resort to excessive force "or unusual means, his implied authority would constitute an adequate defense. Hoffman v. N. Y. Cent. & H. R. R. R. Co., supra. Unquestionably, therefore, the driver was acting in the course of his employment in ejecting the plaintiff.

Contributory negligence was no predicable of the fact that the plaintiff leaped from the moving car. It was not his voluntary act. The driver’s conduct left him with that as the only escape from being beaten or violently thrown from the car; and it" is a familiar rule 'that if one person, through the fault of another, is forced to assume a perilous alternative to escape other impending danger, negligence cannot be imputed to the former. Neither is error of judgment in a sudden and instinctive effort to escape impending danger to be accepted as a proximate cause of resultant injury. Am. & Eng. Ency. of Law, Vol. 4, p. 48, etc., and cases collected in the notes.

The exceptions should1 be sustained, and a new trial ordered, with costs to the plaintiff to abide the event.

All concur.  