#### Mary A. Hogle, Respondent, *v.*H. H. Franklin Manufacturing Company, Appellant.

Fourth Department,

November 11, 1908.

Tort — injury by missile thrown from factory — duty of master.

The owner of a factory who has notice that his workmen have a habit of throwing missiles from the windows upon adjoining property is liable for personal injuries caused thereby if he fails to use reasonable means to suppress the practice.

While a master is not liable for such malicious acts of his servant, he is, having knowledge, liable for his own negligence in failing to use reasonable means to prevent his employees from carrying on dangerous practices on his premises. McLennan, P. J., dissented.

Appeal by the defendant, the H. H. Franklin Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 20th day of January, 190§, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 20th day of January, 1908, denying the defendant’s motion for a new trial made upon the minutes.

*404*Jerome. L. Cheney,*for the appellant.

*Frank C. Sargent,*for the respondent.

Kruse, J.:

The plaintiff seeks to recover damages for personal injuries. A piece of. iron was thrown from the defendant’s factory, hitting the plaintiff and hurting her. She was at work in her garden at the time. The defendant’s factory premises adjoined the garden, which is in the rear of the house where the plaintiff lives with her husband and famjiy..

The evidence is ample to support the finding that the missile was thrown by a workman in the factory. The jury could find from the evidence that .it had been the practice of ' the defendant’s employees working in the factory, for a year or more, to throw pieces of iron, such as old bolts, nuts and other articles, from the windows of the factory upon the adjoining premises where the plaintiff lived and was hurt. According to her testimony it was of daily' occurrence. She mentions several instances when the safety of children in the yard was endangered; once a file was thrown, which just passed oyer her little son; at another time a bolt was thrown at another son, a larger boy. Things were thrown at the neighbors’ children in her yard at other times. * ©

The practice commenced in the spring of 1905 and continued till she was hurt, in .August, 1906. She testifies that she saw things thrown at least once a day during that time'. Her evidence is corroborated by circumstances which tend to show that this practice was not only habitual, but- in reckless disregard of the safety of llerself and her children.

Complaint of the practice was made to the defendant upon several occasions. The plaintiff’s husband, upon one occasion, took a handful of nuts and bolts and a file; which had been picked up in his yard, went to the defendant’s office and called attention to the practice'of throwing things, ás has been described, and was assured by the defendant’s representative that he would see that the practice was stopped. The owner of the premises, of whom the plaintiff’s husband rented,, likewise complained of the dangerous practice. It was, however, continued until the plaintiff was hurt.

The learned trial court held that if. the defendant had notice of this practice, it. was required to use reasonable efforts to prevent it, *405and charged the jury that if the defendant did not make reasonable efforts to prevent these trespasses, and the injury resulted therefrom, the defendant is liable for the consequences of the injury, and refused to charge, as requested by defendant’s counsel, that there can be no recovery unless the jury find that the piece of iron was thrown as a necessary consequence of the work being carried on there, or as incident to it, and likewise refused to charge that the defendant cannot be held liable for malicious injury inflicted by one of its servants unless the same was done within the scope of his employment. Other requests, similar in substance, were refused, and the defendant’s counsel excepted.

The question is thus presented, whether one who owns and operates a factory, having knowledge- of the practice of his workmen habitually throwing missiles from his factory, while in his employ and under his "control, upon the lands of another, so as likely to injure, persons there, and fails to use reasonable means to suppress the same, is liable for a personal injury so inflicted, although done maliciously and not within the scope of their employment. We think the question must be answered in tlie affirmative. *(Dwyer*v. *President, etc., Delaware & Hudson Canal Co.,*17 App. Div. 623, affg. the judgment of the court below without opinion, and referred to in *Clifford*v. *N. Y. C. & II. R. R. R. Co.,*111 id. 810; *Carpenter*v. *Boston & Albany R. R. Co.,*97 N. Y. 494; *Swinarton*v. *le Boutillier,*7 Misc. Rep. 639 ; affd., 148 N. Y. 752 ; *Conradt*v. *Clauve,*93 Ind. 476; *Fletcher*v. *Baltimore & Potomac Railroad Co.,*168 U. S. .135.)

It is true, as a general rule, that a master is not liable for a malicious act of his servant done under such circumstances. That, however, does not relieve the defendant from its own misconduct or neglect to use reasonable means to prevent the dangerous practice carried on by the workmen under its control and on its own premises. It seems to us that an owner cannot stand idly by and permit others to make his premises a standing ground for the habitual practice of bombarding his neighbors with pieces of iron and other dangerous missiles, and escape liability upon the plea that he did not authorize the same, and that it was not done in furtherance of his business.

In *Fletcher*v. *Baltimore & Potomac Railroad Co. (supra)*it *406appeared that the defendant’s employees, on returning from their work on the work train, were permitted to bring back with them for their own individual use old ties, pieces of wood and other refuse timber for fire wood, and throw them off the train near their homes while the train was in motion, and that in doing so a person in the street was hurt.

The trial court in that case held that the defendant was not liable and directed a judgment in its favor. That judgment was affirmed in the Court of Appeals, of the District of Columbia, but was reversed in the Federal Supreme Court, and it was there held that if the defendant railroad company knowingly permitted such, practice and was negligent in failing to prevent the saíne, and injury resulted therefrom, the railroad company is liable, notwithstanding the act of the employee who did the injury was beyond the scope of his employment, and totally disconnected therewith.

So in this casé, if the dangerous practice existed to the extent and for so long a time as claimed by the plaintiff, and the defendant had notice of it and failed to use reasonable means to prevent it, as the jury was warranted in finding from the evidence, we think the plaintiff is entitled tó recover.

The judgment and order should be affirmed.

All concurred, except McLennan, P. J., who dissented.

Judgment and.order affirmed, with costs.'