(78 Hun, 524.)

#### SMITH v. NEW YORK CENT. & H. R. R. CO.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

Master and Servant—Torts of Servant—Scope of Employment.

A railroad company is not liable for injuries caused by the explosion of a torpedo placed on the track by a station agent, where it appears that the agent placed the torpedo on the track merely for the purpose of hearing the explosion, and not as a signal to any train, that torpedoes were net furnished to station agents for their own use, and that the rules of the railroad company forbade placing them near stations.

*541Action by Joseph Smith against the New York Central & Hudson River Railroad Company for personal injuries. A nonsuit was granted at the Cayuga circuit, and plaintiff moved for a new trial on exceptions ordered to be heard at general term in the first instance.

Denied.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

H. V. Holland, for plaintiff.

J. W. Dunwell, for defendant.

HAIGHT, J.

This action was brought to recover the damages sustained by the plaintiff on the 23d day of July, 1891, at the West Shore Railroad station, at Port Byron, N. Y., by reason of the alleged negligence of the defendant’s station agent at that place. It appears from the evidence that the plaintiff was standing upon the platform of the station; that a train known as the “Local Freight” had arrived, stopped, switched some cars, and was about starting on its way, when H. S. Biker, the defendant’s station agent, stepped out, and placed two torpedoes upon the track under one of the freight cars in the central part of the train, and then ran back to the station house. The train had just begun to move, and as the rear wheels of the freight car passed over the torpedoes an explosion occurred, causing some sharp fragment to pierce the plaintiff’s leg, inflicting a serious injury. The plaintiff first testified that the train did not stop after the explosion, but continued on its way, but he subsequently testified that it did stop for a time. But no evidence was submitted, showing that any communication took place between the station agent and the persons in charge of the train thereafter. The plaintiff read in evidence the rules under which the West Shore Railroad was operated at that time, providing for the use of signals, in which it is provided that:

> “(30) An explosive cap or torpedo, placed on top *of the*rail, is a signal to be used in addition to the regular signals. The explosion of one torpedo is a signal to stop immediately. The explosion of two torpedoes is a signal to reduce speed immediately, and look out for a danger signal.”

> *“(77)*The torpedoes must not be placed near stations or road crossings, where persons are liable to be injured by them.

> “(78) All signals must be used strictly in accordance with the rules, and trainmen and enginemen must keep a constant lookout for signals.”

This is, in substance, the evidence presented on behalf of the plaintiff. From it, we are asked to assume that the station agent was attempting to signal the train to stop by exploding the torpedoes; that he was thus acting within the scope of his employment, but in the use of the torpedoes, under the circumstances, at that place, he was guilty of negligence, and consequently the plaintiff was entitled to recover. On behalf of the defendant, evidence was given to the effect that torpedoes were not furnished to station agents for their use; that they were not permitted to use them in the vicinity of a depot; that there was no occasion for signaling the train at the time of the accident; that it was not signaled, and did not stop after it had started from the station. Riker, the sta*542tian agent, testified that the torpedoes used by him were thrown off by conductors of passing trains as a makeweight for the paper containing the numbers of their trains; that he picked them up, and as the train started he put them upon the track, for the purpose of hearing the explosion, and with no occasion for, or object in view of, signaling the train. It is thus apparent that the only question in the case was as to whether the station agent, in doing what he did, was acting within the scope of his employment, in the performance of a duty imposed upon him by the company. If so, and if it was negligent and dangerous to explode the torpedoes in the vicinity of the station when persons were standing upon the platform, the company is liable; but if, by doing what he did, he went outside of his employment, in order to effect a purpose of his own, in exploding the torpedoes for his own amusement, and not for the purpose of signaling the train, then the company would not be liable. Isaacs v. Railroad Co., 47 N. Y. 122; Mott v. Ice Co., 73 N. Y. 543-547; Mulligan v. Railway Co., 129 N. Y. 506, 29 N. E. 952; Mars v. President, etc., 54 Hun, 628, 8 N. Y. Supp. 107; Finley v. Railway Co., 64 Hun, 373, 19 N. Y. Supp. 621. It may be that Biker was so far an interested witness that his credibility was involved, which could only be passed upon by the jury. But, as we have seen, the plaintiff showed, from the rules of the company, that the explosion of torpedoes near stations and road crossings, where persons were liable to be injured, was prohibited. He has not shown that there was env occasion or reason for signaling the train on this occasion, or that the torpedoes were exploded for that purpose. It appears that the torpedoes were placed upon the track close together, so that the explosion of one instantly followed the other. This was not a signal, under the regulations of the company. In case a signal was to be given, to slow up, and proceed with caution, two torpedoes would be placed upon the track, hut several rails apart,' so that there would be two distinct reports, several seconds intervening; and, if it was desired to bring a train to a stand, one torpedo, only, would be used. We are therefore inclined to the view that the plaintiff failed to show that Riker was acting within the scope of his employment, in exploding the torpedoes. The motion for a new trial ■should be denied, and judgment ordered for the defendant upon the nonsuit. All concur.