
    Frank L. Magar, Respondent, v. Stoddard Hammond et al., Appellants.
    (Argued December 4, 1905;
    decided January 9, 1906.)
    1. Fish Preserve and Private Park — Shooting of Trespasser by Watchman or Gamekeeper — Liability of Owner of Park. The owner of a fish preserve and private park, established and posted as required by law, owes no duty to trespassers poaching thereon except to abstain from willfully, wantonly or recklessly injuring them; and where a trespasser, who had been taking trout from a pond within a private preserve and park, was injured by a bullet from a rifle discharged by a watchman or gamekeeper employed to guard the pond, the owner is not liable unless the watchman’s act was within the general scope of his employment, and whether such act was or not is a question of fact for the jury in an action brought to recover for such injury; it is reversible error, therefore, for the trial court to refuse to charge, when requested by defendant, that the defendant was not responsible if the shooting was accidental or merely negligent.
    2. Same — When Contributory Negligence Not a Defense. The defendant in such action, being liable only for a wanton, willful or reckless injury inflicted upon the plaintiff by the watchman or gamekeeper within the scope of his employment, so that no liability can be predicated on negligence, the contributory negligence or positive wrong of the plaintiff in trespassing on the private park becomes immaterial.
    
      Hagar v. Hammond, 95 App. Div. 249, reversed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 14, 1904, affirming a judgment in favor of plaintiff entered upon -a verdict and an order denying a motion for a new trial.
    The nature of the action, and the facts, so far as material, are stated in the opinion.
    
      Henry Bacon, John J. Beattie and George H. Carpenter for appellants.
    The defendant Hammond being in the lawful possession of this property, and the defendant Tompkins being lawfully in 1ns employ in preserving the property, owed no duty to the plaintiff except to abstain from doing him willful and unnecessary injury. (Cooley on Torts, 660; Blyth v. 
      Topham, 2 Croke, 158; Brock v. Copeland, 1 Esp. 203; Jordan v. Crump, 8 M. & W. 781; Nicholson v. Erie R. R. Co., 41 N. Y. 525 ; Larmore v. C. P. I. Co., 101 N. Y. 391; Sterger v. Van Sicklen, 132 N. Y. 499 ; Bush v. Brainard, 1 Cow. 78; Robertson v. N. Y. & E. R. R. Co., 22 Barb. 91; Baker v. Byrne, 58 Barb. 438; Roulston v. Clark, 3 E. D. Smith, 366.) The court should have excluded from the jury the question of the defendants’ negligence by charging that the defendants are not liable for injuries sustained by the plaintiff while he was on premises of the defendant Hammond, engaged in a criminal act, if such injuries resulted from accident or negligence upon the part of the defendant Hammond' or his employee in discharging the gun. (T. R. R. Co. v. Munger, 5 Den. 255; Perry v. N. Y. C. R. R. Co., 22 Barb. 574; Boyle v. N. Y., L. E. & W. R. R. Co., 39 Hun, 171; 115 N. Y. 636; Sutton v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 243 ; McAlpin v. Powell, 70 N. Y. 126; Johnson v. N. Y C. & H. R. R. R. Co., 173 N. Y. 79; Albert v. City of New York, 75 App. Div. 553; Walsh v. F.R.R. Co., 145 N. Y. 301; Downes v. E. B. Co., 41 App. Div. 339.) The plaintiff is not entitled to recover against both defendants if the act of Tompkins was a willful or wanton act intended to injure or reckless of the probable injury to the plaintiff or any other person. (Pinder v. B. H. R. R. Co., 173 N. Y. 519 ; Fraser v. Freeman, 43 N. Y. 566 ; Higgins v. W., etc., R. R. Co., 46 N. Y. 23 ; Isaacs v. T. A. R. R. Co., 47 N. Y. 122; Mott v. C. I. Co., 73 N. Y. 543; Girvin v. N. Y. C. & H. R. R. R. Co., 166 N. Y. 289; Ochsenbein v. Shapley, 85 N. Y. 214; Poucher v. Blanchard, 86 N. Y. 256; Thomas on Negligence [1st ed.], 15.)
    William Vanamee, Abr am F. Bervin and Thomas Watts for respondent.
    The defendant Hammond owed to plaintiff the duty that his servants, while acting in the course of his business, should refrain from conduct which might reasonably be apprehended to injure him, whether such conduct be characterized as willful, wanton, reckless or merely thoughtless. (Johnson v. N. Y. C. & H. R. R. R. Co., 173 N. Y. 79; Remer v. L. I. R. R. Co., 48 Hun, 352; White v. N. Y. C. & H. R. R. R. Co., 47 N. Y. S. R. 174; Wright v. Wilcox, 19 Wend. 343; Vanderbilt v. R. T. Co., 2 N. Y. 479; Mali v. Lord, 39 N. Y. 381; Frazer v. Freeman, 43 N. Y. 566; Isaacs v. T. A. R. R. Co., 47 N. Y. 122; Cosgrove v. Ogden, 49 N. Y. 255 ; Rounds v. D., L. & W. R. R. Co., 64 N. Y. 129.) Defendants’ exceptions to portions of the charge and to refusal of requests to charge are of no avail. (Ochsenbein v. Shapley, 85 N. Y. 214; Cosgrove v. Ogden, 49 N. Y. 255.)
   Cullen, Ch. J.

This action was brought to recover damages for injuries inflicted on the plaintiff by a bullet from a rifle discharged by the defendant Tompkins, a watchman or gamekeeper employed by the defendant Hammond to guard a fishpond, and against said Hammond. The pond was situate in a tract of three hundred acres of forest land in Sullivan county in this state. The defendant Hammond had stocked it with fish and posted the notices required by law for its protection. The plaintiff, with two companions, at night, had been taking trout from the pond and was in the woods on its bank when Tompkins passed by in a boat and fired either three or four shots at him and his companions, as claimed by the plaintiff, the third of which struck the plaintiff. On the other hand, Tompkins denied he was in any way aware that the plaintiff, or any other person, was in the adjacent woods, and asserted that he fired the shots in the air simply to frighten off any poachers that might be in the vicinity. The case has been here before, when a judgment recovered by the plaintiff was reversed for error in the charge (171 N. Y. 377). In the report of that appeal the facts of the case are recited in detail. The evidence given on the present trial is substantially the same as that on the previous one.

We think the rules of law applicable to the case are well settled and comparatively simple. The plaintiff and his companions were trespassing on the premises of the defendant Hammond and engaged in the commission of a crime. The defendants, therefore, owed them no duty of affirmative care.and the only obligation resting upon the defendants was to abstain from willfully, wantonly or recklessly injuring them. (Sutton v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 243; Johnson v. Same, 173 N. Y. 82.) But though the plaintiff and his associates were engaged in the commission of a crime, that crime was only a misdemeanor and it did not authorize the use against them of a deadly weapon or the infliction upon them of serious bodily harm. Even in the case of a peace officer, he is justified in the use of a deadly weapon against an offender only when its use is necessary to secure the arrest of the offender, and when the offender has been guilty of afelony. (Penal Code, secs. 204, 223:) So, when a policeman shot and killed a fleeing prisoner, the prisoner having been guilty of a misdemeanor but not of a felony, the policeman was held guilty of manslaughter. (Conraddy v. People, 5 Park. Cr. Rep. 234.) Under these principles of law neither Tompkins nor his master and co-defendant was liable for the accidental or merely negligent discharge of his rifle. If, on the other hand, being aware or believing that the plaintiff, or other human beings, was on the bank of the pond, Tompkins shot the plaintiff willfully, intending to hit him or some human being, or, if without intending to hit the plaintiff or any human being, lie - recklessly or wantonly shot where he had good reason to believe there were human beings, then he is liable for the injury caused to the plaintiff. To render the defendant Hammond liable for the willful, reckless or wanton act of Tompkins, the act must have been done by Tompkins in the scope of his employment, and whether it was so done should be submitted as a question of fact to the jury. (Craven v. Bloomingdale, 171 N. Y. 439.) If Tompkins, not having the interests or services of his master in mind, and acting maliciously or in order to effect some purpose of his own, shot the plaintiff, then his master, the defendant Ilazninond, is not liable for his act; but if his act was within the general gcope of his employment and Jone with a view to the furtheranee of his master’s business, then Hammond is liable whether the act was willful, wanton or reckless. (Mott v. Consumers' Ice Company, 73 N. Y. 543; Rounds v. Del., Lack. & W. R. R. Co., 64 N. Y. 129 ; Lynch v. Met. El. R. Co., 90 N. Y. 77; Girvin v. N. Y. C. & H. R. R. R. Co., 166 N. Y. 289; Dupre v. Childs, 52 App. Div. 306; affd. on opinion below, 169 N. Y. 585.)

The learned trial judge presented to the jury the question of the defendants’ liability substantially on the theory that has been already outlined, except that he did not instruct the jury that the defendants were not responsible if the shooting was accidental or merely negligent, and, when requested to so charge, refused the request. Personally I should - incline to the view that this omission and refusal did not constitute error, because the case was not given to the jury on the theory'of negligence. My associates, however, are of a contrary opinion and think that the defendants were entitled to an express instruction that they were not liable for negligence. Moreover, I must concede that the use by the learned trial judge, in several portions of his.charge, of the term negligence as applied to the conduct of the watchman, affords ground for their opinion. Hence, I yield to their conclusion, and the judgment appealed from must be reversed for the error indicated.

As there is to be a new trial of the case it is proper we should allude to a subject which has in no small measure contributed to the possible confusion in -which this case was submitted to the jury. On the previous appeal we reversed the judgment recovered because of the refusal of the trial court to submit to the jury the question of the plaintiffs contributory negligence. It will bo seen, however, on an examination of the record then before us that the case went to the jury on the theory of negligence, and that the question of whether such a theory could be upheld was not before us. If the defendants were to be held liable for negligence we held that to that liability the plaintiff’s contributory negligence was a bar. Under the views that we have now expressed, however, that no liability of the defendants can be predicated on negligence, the contributory negligence or positive wrong of the plaintiff in trespassing on the premises becomes immaterial, for it was not the proximate cause of the injury for which he seeks to recover, and contributory negligence is not a defense to a willful or wanton wrong. (Remers v. L. I. R. R. Co., 48 Hun, 352; affd. on opinion below, 113 N. Y. 669; Lannen v. Albany Gas Light Company, 44 N. Y. 459; Kain v. Larkin, 56 Hun, 79; Thompson on Negligence, secs. 206, 247.)

The judgments of the Appellate Division and the Trial Term should be reversed and new trial granted, costs to abide the event.

Gray, O’Brien, Bartlett, Haight, Yann and Werner, JJ., concur.

Judgments reversed, etc.  