Sandles v. Levenson

¶1I am of opinion that this judgment should be reversed upon the ground that a question was presented as to whether the watchman negligently fired the shot which resulted in the injury to the plaintiff. The defendant’s yard was in a thickly inhabited section of'the city of Hew York, and I think no one is justified in such a locality in firing a pistol in such a direction that any one upon adjoining property or in the street can be injured ; and where a pistol is fired in such a locality which results in the injury of a person upon adjoining property there is at least presented a question as to whether the person firing the pistol was negligent and thus impose a liability for any injury caused thereby. I agree with Mr. Jnstice Hatch that there was a question of fact as to whether the watchman was acting within the scope of his authority as an employee of the defendant; and that if he was, and the jury should find that it was negligence for him to fire this pistol under the circumstances, the defendant would be liable. I should hesitate in voting for reversal of this judgment upon the ground that there was evidence to justify the jury in finding that the watchman saw the plaintiff and fired at him; but the fact that a person upon adjoining property was struck by a bullet coming from a pistol fired from the defendant’s property by either the defendant or one in his employ acting in the discharge *310of the duty imposed upon him, is of itself evidence to require the submission of the question to the jury, and then upon the whole case it is a question for them as to whether the act was a negligent one for which the defendant was liable.