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 *Page 390 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 isnecessary to secure the arrest of the offender, and when the offender has been guilty of a felony. (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, he 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 Hammond, is not liable for his act; but if his act was within the general scope of his employment and done with a view to the furtherance *Page 391 of his master's business, then Hammond is liable whether the act was willful, wanton or reckless. (Mott v. Consumers' IceCompany, 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 plaintiff's contributory negligence. It will be 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, *Page 392 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. AlbanyGas 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, VANN and WERNER, JJ., concur.
Judgments reversed, etc.