The complaint in this action contains two counts, one for assault and battery claimed to have been committed upon the person of the plaintiff by the watchman employed by the defendant in and about his business. The second cause of action charges negligence and is based upon the same facts. The court ruled upon the trial that the proof was insufficient to base a finding of negligence and dismissed the complaint for that reason, and, upon the question of assault, the court concluded that the action could not be maintained for the reason that at the time of its commission the watchman was not acting in the scope of his employment, or in defense of his master’s property. The case proved in its essential features is one to recover damages for negligence.
It appeared upon the trial that the plaintiff, an infant, was playing ball with other boys near the premises of the defendant, where he carried on the business of manufacturing gas fixtures. The premises were inclosed by a fence. In the course of the play the ball was knocked over the fence upon the defendant’s premises. The watchman threw out a ball from the premises to the boys, but not the one which had been knocked over. Thereupon one of the boys named Gilligan went upon the shed adjoining the premises of the defendant for the purpose, as he claims, of getting the ball which belonged to them. There was a ladder furnishing access from this shed into the premises. As Gilligan got one foot upon the ladder the watchman pulled it from under him and he fell to the ground, a distance of about six feet. When he had fallen to the ground the watchman stood over him and pulled out a pistol. The plaintiff, hearing the noise of Gilligan’s fall, went upon the shed and walked over to the end towards the defendant’s premises, following the same course that Gilligan had taken. He reached a point upon the shed near where the ladder had been placed, which brought him directly over the spot where the watchman stood, distant about four or five feet. When the plaintiff arrived at this point the watchman *311had the pistol in his hand and pointed directly towards the plaintiff, and almost immediately fired the same, the bullet from which struck the plaintiff in the knee. This shot was followed by another, which did not take effect. The plaintiff exclaimed after the first shot, “ I am shot,” and the second shot followed this exclamation. The watchman then went into the office upon the premises and telephoned to the police that he was being robbed. The watchman testified that he was working on the day in question, which was Sunday, taking care of the property; that the defendant had given him the revolver and that he had taken it from his desk.
These facts are fairly to be drawn from the testimony, and in consideration of the evidence given by the plaintiff upon this appeal he is entitled to the most favorable inferences of which the facts admit. The rule of law is well settled that the master, for the acts of the servant within the general scope of his employment, and while engaged in the business with a view to the furtherance of his interests, is responsible therefor, whether the act be done negligently, wantonly or even willfully. (Mott v. Consumers' Ice Co., 73 N. Y. 543; Girvin v. N. Y. C. & H. R. R. R. Co., 166 id. 289.)
In the latter case it was held that where a brakeman pursued the plaintiff, who was engaged in stealing a ride upon one of the defendant’s freight trains, upon which the brakeman was employed, and the plaintiff jumped from the train, was immediately followed by the brakeman, who struck him before he reached the ground and broke his leg, and then kicked and struck him, a case was presented for the jury as to whether the acts of the brakeman were within the scope of his employment, rendering the defendant liable therefor.
Such has been the rule announced in many cases. (Rounds v. D., L. & W. R. R. Co., 64 N. Y. 129; Montgomery v. Sartirano, 16 App. Div. 95.)
There can be no doubt in this case but that the jury would have been authorized to find that the watchman was engaged in the course of his employment in caring for the property of the defendant ; that the defendant had furnished him the pistol, to be used if the watchman deemed it necessary in the performance of his duty. Were the jury authorized to find that in what the watchman did he acted for the defendant in furtherance of his interests % The first *312boy had gone over this shed to the ladder. Of that fact the watchman was aware, because he had discovered and pulled the ladder from under him. The second boy passed over the same shed in the same manner towards the same point, in close proximity to the watchman. When he arrived within four or five feet of the point where the watchman stood, the latter fired the shot which inflicted the injuries, and immediately thereafter communicated to the police that he was being robbed. There is nothing in this record to show that, at the time the shot was fired, the plaintiff was not plainly visible to the watchman. He stood within four or five feet of him. The watchman had the pistol pointed directly at him ; the trespass by the first boy had been by the same ladder, and it seems clear, therefore, that the jury would be justified in drawing the inference that the watchman was aware of the presence and position of the plaintiff; that he fired the shot under the impression that the plaintiff intended to commit a trespass and deemed such act necessary in the discharge of his duties as watchman of the defendant’s property. Under such circumstances, within the rule of the authorities which we have cited, a case was presented which required its submission to the jury. It is said in answer, however, that this case is controlled by the decision of Grimes v. Young (51 App. Div. 239). An examination of that case discloses that it recognized to the fullest extent the rule of law to which we have called attention. The facts of that case are entirely different from those which the jury would have been authorized to find in this case, in consequence of which it is clearly distinguishable and becomes an authority in favor of the plaintiff. It therein appeared that the boy who was shot had been bathing in the river near the defendant’s property with a number of his companions, and, after leaving the water and while standing upon a public wharf, was shot down by the watchman without the slightest provocation. There was in that .case an entire absence of testimony tending to show that at the time when the shot was fired a trespass was being committed or attempted ; on the contrary, the boy was not approaching the property of the defendant; was standing in a public place, and no fact appeared authorizing the inference that he even contemplated a trespass upon the defendant’s property. In addition to this, it was by no means made clear that the person firing the shot had entered upon his *313duties as a watchman. From all that did appear it was evident that the shooting was a wanton, willful act, disconnected from any employment or duty devolved upon such person in the course of his employment. The court, therefore, properly applied the rule that the defendant was not liable for such an act.
The facts of the present case take it out of the operation of such rule, for here the inference is fairly presented that what the watchman did was done in the course of his employment; was clearly within its scope and that he deemed the act of firing the pistol necessary for the protection of the property which he was charged with protecting. A case was, therefore, made which required its submission to the jury.
It follows that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
Judgment affirmed, with costs.