In this tort action for damages for personal injuries suffered by the plaintiff, then a pupil in a public school, we are asked to say that the jury could properly find that it was due to the negligence of the teacher in absenting herself from the classroom. The board of education in New York City is now liable for the negligence of a school teacher (Education Law, § 881-a, as it existed in 1938, now § 2510; Reeder v. Board of Educ. ofCity of N.Y., 265 App. Div. 158, affd. 290 N.Y. 829).
On November 15, 1938, at about 2:15 P.M., the plaintiff, Herbert Ohman, then aged thirteen years and a pupil in drawing class 7-B, Public School No. 238, Brooklyn, under the jurisdiction of the board of education, sustained a severe permanent injury when struck in the left eye by a lead pencil. The pencil had been thrown by a classmate in the direction of a third classmate with the remark "Here is your pencil". The boy for whom it was intended ducked and the pencil hit the plaintiff who was standing directly behind him.
The accident occurred while the teacher in charge was temporarily absent from the classroom for the purpose of sorting and storing in a corridor closet an issue of schoolroom supplies, a routine task forming part of her usual duties. The testimony as to the length of time the teacher was out of the room is conflicting (which is not at all surprising as nine years elapsed between the date of the accident and the trial) but whether for "more than an hour" as contended by the plaintiff or "less than a minute" as shown by the defendant's witnesses is wholly immaterial. The most favorable inference in any event is that the teacher was not in the room when the accident occurred. Nonetheless, it does not follow that such *Page 309 absence was the proximate producing cause of the injury, which was due, as we see it, to the tossed pencil. Whether it was done mischievously and heedlessly or wantonly and willfully, or with the serious purpose of returning the pencil to its owner, it was the act of an intervening third party which under the circumstances could hardly have been anticipated in the reasonable exercise of the teacher's legal duty toward the plaintiff. As we read the statute applicable to New York City, liability of the board for the acts of a teacher is not dependent upon any new or different rules of common-law negligence. Here even if we assume without conceding that the teacher was negligent in leaving the room for any purpose, for any length of time, it does not follow that the board is liable for the consequences of an unforeseen act of a third party. This would constitute the board an insurer, and we would no longer have need to consider the applicability of long-established and well-recognized rules of common-law negligence. By such standards, a teacher may be charged only with reasonable care such as a parent of ordinary prudence would exercise under comparable circumstances. Proper supervision depends largely on the circumstances attending the event but so far as the cases indicate, there has been no departure from the usual rules of negligence. For instance, when defective or dangerous equipment or paraphernalia is used, the teacher or board is charged with foreseeability and negligence may be predicated thereon (Applebaum v. Board of Educ. of City of N.Y., 272 App. Div. 875, affd. 297 N.Y. 762; Miller v. Board of Educ., 291 N.Y. 25).
The case of Hoose v. Drumm (281 N.Y. 54) relied upon by the appellant is distinguishable and does not compel reversal. That case arose outside the city of New York prior to the enactment of the indemnity provision of the Education Law (§ 569-a, as it existed in 1938, now § 3023). The plaintiff, a public school student, was injured by a goldenrod stalk thrown by another child during a recess period. The action was against the school district trustees rather than the teacher charged with the responsibility of supervising the class while in the playground. At that time the trustees were under only the statutory duty of promulgating rules for safety and discipline (Education Law, §275, subd. 9). Because of this we held — and it *Page 310 must be considered the limit of the case as an authority — that the trustees were not liable. By dictum in the closing sentence of that opinion (p. 58) it was suggested that "any dereliction * * * was the fault of the teachers, for which the trustees cannot be held". The teacher's negligence was not before us and we did not determine it. It is also of some significance that there the accident occurred in the playground and not in the classroom, a place where close supervision of the children is all but mandatory. Also the record contained proof of prior injuries from tossing the goldenrod. Here we have quite a different situation, both factually and legally. There is no proof of similar accidents, nor can anyone seriously contend that a pencil in the hands of a school pupil is a dangerous instrumentality. This is one of those events which could occur equally as well in the presence of the teacher as during her absence. It is not unlike the situation in Maurer v. Board of Educ. of City of N.Y. (294 N.Y. 672), in which we affirmed the dismissal of the complaint on the grounds of no causal relation where the plaintiff had been injured by having a finger stuck into his eye by another boy swimming in the same pool but in a direction opposite to instructions of the coach. (See, also, Graff v.Board of Educ. of City of N.Y., 258 App. Div. 813, affd.283 N.Y. 574; cf. Clark v. City of Buffalo, 288 N.Y. 62; Berner v. Board of Educ., 286 N.Y. 174.)
The judgment should be affirmed, without costs.