By the Court,
Hogeboom, J.
Inasmuch as no motion for a new trial has been made upon the judge’s minutes, or at the special term upon the weight of evidence, or for excessive damages, but the case has been ordered to be heard in the first instance at the general term, we are restricted to the examination of exceptions. And of these none appear to have been taken to the admission or rejection of evidence. We must look, therefore, to the decision of the judge upon the motion for a nonsuit, and upon the charge and refusals to charge.
The defendant moved for a nonsuit on two grounds. 1. On the ground that there was no evidence to support the complaint, and none to go to the jury, upon which the defendant could be made liable. 2. On the ground that the defendant was acting as a public officer in the discharge of his duty, and was not liable, under the facts proved, for the injury sustained by the plaintiff. These grounds are stated in the [485]*485most general form, and can scarcely be said to present any question for the decision of the court. It is not stated why or how there is no evidence to support the complaint •, nor is attention invited to any particular aspect of the case, nor to the absence of evidence upon any particular point, nor upon any number of points combined, specifying what they were. I apprehend, under such circumstances, the judge is not called upon for a special exertion of his ingenuity or of his memory to see if he cannot devise some plausible objection to the plaintiff’s recovery. The least that the defendant is called upon to do is to bring the special grounds, which justify a nonsuit, to his notice. I regard this rule as well settled by authority, and as highly reasonable upon principle.
Certainly such a motion does not present the question that the action should have been case for the defendant’s negligence, instead of trespass for a direct injury. So objection whatever was taken to the form of the pleadings nor to the admissibility of evidence under them. If the objection had been taken, the pleadings would probably have been amended on the spot, had an amendment been deemed necessary. These formal objections must not be listened to, unless distinctly made.
Sor, if the motion were distinctly and specifically presented on the merits, ought the nonsuit, in my opinion, to have been granted. There was at least enough to go to the jury upon the question whether proper care had been taken in examining the muskets to see if they were unloaded; upon the question whether the defendant should have ordered the soldiers to fire in the direction of so large a body of spectators ; or if so, whether the angle of elevation at which the guns were ordered to be fired, should not have been higher. There was therefore no legal error in refusing to nonsuit.
As to the charge, the substance of the legal propositions contained in it was, I think, as favorable to the defendant as the law would warrant. It held the defendant free from responsibility unless he had been guilty of negligence. It [486]*486held him responsible for the acts of others only in the event that he had issued the order in conformity with which the act was done, or had failed to take proper precautions preparatory to the order, which, if such precautions were taken would or might be a proper and prudent order, but would be otherwise if those precautions were omitted. As to the existence of negligence, the judge seems to have fairly stated the positions taken and claimed by each party upon that point at the trial. The judge also charged that the degree of care and diligence requisite was in proportion to the seriousness and magnitude of the consequences, probable from an absence of it. This is one mode, and I think not an improper mode, of measuring the degree of care necessary to be observed. In another part of the charge, he observed that the use of powder and fire arms, under all the attendant circumstances connected with this case, required the highest degree of care. The attendant circumstances were the fatal consequences likely to ensue from carelessness in the use of loaded fire arms, and the presence of a large body of spectators near and in front of the troops, and there by the consent or acquiescence of the commanding officer. A very high decree of care—which is probably all that the judge intended by the term highest degree of care, when taken in connection with other portions of his charge—and especially that just previously quoted—was certainly requisite. It is scarcely worth while to enter into an argument to determine whether the highest possible degree of care was demanded. In regard to carriers of passengers, the courts have frequently said that the highest care and the utmost precautions are requisite, even with regard to stage coaches as well as vehicles propelled by steam, and a close and rigid comparison of the two cases might probably show that at least as much care would be necessary in the present case as in that of a carrier of passengers by stage coach, although the latter was under a contract for compensation for the transportation. But if the charge was, upon a strict scrutiny, objectionable in this [487]*487particular, I regard the exception as unavailable by reason of its covering other matter not exceptionable, favorable to the defendant and which the defendant asked the court to charge— to wit,- that it was not a case of master and servant, or principal and agent, and that the defendant was not responsible for the negligence of his subordinates, unless done in consequence of his improper order or unjustifiable negligence.
As to the refusals to charge: 1. Taken in connection with the facts of the case and with the residue of the charge; the judge properly refused to charge in an unqualified form the defendant’s first request that an action cannot be maintained against a public officer for an act done by him in the execution of his office and within the scope of his general authority. The judge in substance charged that proposition elsewhere, with the qualification (a proper one) that proper care should be observed in the performance of the act. 2. The judge in substance complied with the defendant’s third and fourth requests, to wit, that the proof must show neglect of duty on the part of the defendant himself which occasioned the accident, and that if the colonel took the usual precautions or gave the proper orders, he was not responsible for the carelessness or negligence of his inferior officers. The request was faulty in this: usual precautions, unless they were prudent or requisite precautions, would not absolve the defendant from responsibility. The judge charged right in this particular. 3. The sixth request—to wit, that the injury was not sustained by any act, order or intent of the defendant—was properly refused upon the ground that it was a question of fact proper to be submitted, upon the evidence, to the jury. 4. The seventh and eighth requests, so far as they declare it to have been the duty of the defendant to exercise his regiment in the use of their fire arms, with ammunition, and that in giving the order to fire (after proper precautions) the colonel only discharged a legal duty within the scope of his authority, were essentially and indeed expressly complied with by the judge. So far as the 8th request declares that the firing of the regi[488]*488ment in' the' way and manner
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By the Court,
Hogeboom, J.
Inasmuch as no motion for a new trial has been made upon the judge’s minutes, or at the special term upon the weight of evidence, or for excessive damages, but the case has been ordered to be heard in the first instance at the general term, we are restricted to the examination of exceptions. And of these none appear to have been taken to the admission or rejection of evidence. We must look, therefore, to the decision of the judge upon the motion for a nonsuit, and upon the charge and refusals to charge.
The defendant moved for a nonsuit on two grounds. 1. On the ground that there was no evidence to support the complaint, and none to go to the jury, upon which the defendant could be made liable. 2. On the ground that the defendant was acting as a public officer in the discharge of his duty, and was not liable, under the facts proved, for the injury sustained by the plaintiff. These grounds are stated in the [485]*485most general form, and can scarcely be said to present any question for the decision of the court. It is not stated why or how there is no evidence to support the complaint •, nor is attention invited to any particular aspect of the case, nor to the absence of evidence upon any particular point, nor upon any number of points combined, specifying what they were. I apprehend, under such circumstances, the judge is not called upon for a special exertion of his ingenuity or of his memory to see if he cannot devise some plausible objection to the plaintiff’s recovery. The least that the defendant is called upon to do is to bring the special grounds, which justify a nonsuit, to his notice. I regard this rule as well settled by authority, and as highly reasonable upon principle.
Certainly such a motion does not present the question that the action should have been case for the defendant’s negligence, instead of trespass for a direct injury. So objection whatever was taken to the form of the pleadings nor to the admissibility of evidence under them. If the objection had been taken, the pleadings would probably have been amended on the spot, had an amendment been deemed necessary. These formal objections must not be listened to, unless distinctly made.
Sor, if the motion were distinctly and specifically presented on the merits, ought the nonsuit, in my opinion, to have been granted. There was at least enough to go to the jury upon the question whether proper care had been taken in examining the muskets to see if they were unloaded; upon the question whether the defendant should have ordered the soldiers to fire in the direction of so large a body of spectators ; or if so, whether the angle of elevation at which the guns were ordered to be fired, should not have been higher. There was therefore no legal error in refusing to nonsuit.
As to the charge, the substance of the legal propositions contained in it was, I think, as favorable to the defendant as the law would warrant. It held the defendant free from responsibility unless he had been guilty of negligence. It [486]*486held him responsible for the acts of others only in the event that he had issued the order in conformity with which the act was done, or had failed to take proper precautions preparatory to the order, which, if such precautions were taken would or might be a proper and prudent order, but would be otherwise if those precautions were omitted. As to the existence of negligence, the judge seems to have fairly stated the positions taken and claimed by each party upon that point at the trial. The judge also charged that the degree of care and diligence requisite was in proportion to the seriousness and magnitude of the consequences, probable from an absence of it. This is one mode, and I think not an improper mode, of measuring the degree of care necessary to be observed. In another part of the charge, he observed that the use of powder and fire arms, under all the attendant circumstances connected with this case, required the highest degree of care. The attendant circumstances were the fatal consequences likely to ensue from carelessness in the use of loaded fire arms, and the presence of a large body of spectators near and in front of the troops, and there by the consent or acquiescence of the commanding officer. A very high decree of care—which is probably all that the judge intended by the term highest degree of care, when taken in connection with other portions of his charge—and especially that just previously quoted—was certainly requisite. It is scarcely worth while to enter into an argument to determine whether the highest possible degree of care was demanded. In regard to carriers of passengers, the courts have frequently said that the highest care and the utmost precautions are requisite, even with regard to stage coaches as well as vehicles propelled by steam, and a close and rigid comparison of the two cases might probably show that at least as much care would be necessary in the present case as in that of a carrier of passengers by stage coach, although the latter was under a contract for compensation for the transportation. But if the charge was, upon a strict scrutiny, objectionable in this [487]*487particular, I regard the exception as unavailable by reason of its covering other matter not exceptionable, favorable to the defendant and which the defendant asked the court to charge— to wit,- that it was not a case of master and servant, or principal and agent, and that the defendant was not responsible for the negligence of his subordinates, unless done in consequence of his improper order or unjustifiable negligence.
As to the refusals to charge: 1. Taken in connection with the facts of the case and with the residue of the charge; the judge properly refused to charge in an unqualified form the defendant’s first request that an action cannot be maintained against a public officer for an act done by him in the execution of his office and within the scope of his general authority. The judge in substance charged that proposition elsewhere, with the qualification (a proper one) that proper care should be observed in the performance of the act. 2. The judge in substance complied with the defendant’s third and fourth requests, to wit, that the proof must show neglect of duty on the part of the defendant himself which occasioned the accident, and that if the colonel took the usual precautions or gave the proper orders, he was not responsible for the carelessness or negligence of his inferior officers. The request was faulty in this: usual precautions, unless they were prudent or requisite precautions, would not absolve the defendant from responsibility. The judge charged right in this particular. 3. The sixth request—to wit, that the injury was not sustained by any act, order or intent of the defendant—was properly refused upon the ground that it was a question of fact proper to be submitted, upon the evidence, to the jury. 4. The seventh and eighth requests, so far as they declare it to have been the duty of the defendant to exercise his regiment in the use of their fire arms, with ammunition, and that in giving the order to fire (after proper precautions) the colonel only discharged a legal duty within the scope of his authority, were essentially and indeed expressly complied with by the judge. So far as the 8th request declares that the firing of the regi[488]*488ment in' the' way and manner they were firing at the time the casualty occurred was a necessary part of their duty, it presented a question of fact upon which the judge was not called upon to pass, hut was properly submitted to the jury, or of mixed law and fact, on the law of which he properly instructed the jury in that portion of the charge elsewhere given. 5. The 9th request was correct in saying' that the colonel, officers and men were (in the parade drill and general use of "fire arms) engaged in the discharge of a common duty imposed upon them hy the laws of the state. If it was intended to' say that they were engaged in the lawful discharge of a duty in the particular case under consideration, it involved the whole subject of inquiry before the jury, and was properly refused. So far as it declared that if the defendant, in discharging his duties as colonel, gave the usual and proper orders to his subordinates, who either by accident or design did what they, ought not to have done, in consequence of which the plaintiff was injured, then the defendant was not responsible^ it was partly correct and partly incorrect, and might have been properly rejected for that reason. If hy proper orders the defendant meant orders proper in themselves and’given with proper' precautions, the request was correct and' was 'complied with. If the subordinates did what they ought not to have done, and not in execution of the defendant’s proper orders, then the defendant was not responsible; and, thus qualified, it presented the precise proposition which the judge instructed the jury was the law of the case. 6. The 10th request, which was in part that this was not a case of master and servant, or principal and agent, was so far complied with by the judge. The residue, to wit, that as the colonel is placed in command of officers and men not selected by him, he is not responsible for their care and skill, as each has a duty peculiar to himself to discharge, is not unqualifiedly true. If the officer, knowing the incompetency of his subordinates, purposely assigns to them a task, in the execution of which it is reasonable to infer that negligence will [489]*489occur and fatal consequences ensue, he is or may he responsible for the injuries thus occasioned. On this subject the judge seems to have taken so much of the proposition as was applicable to the facts of the case, and to have charged the law thereon correctly. 7. The 2d request—that negligence was not to be presumed but must be proved, and that the burden of proof was upon the plaintiff—was expressly complied with by the court. 8. The 5th request was refused by the court, and the defendant excepted. It was this; that if any negligence existed on the part of the defendant in exercising the regiment in firing blank cartridges, it was equally negligent in the plaintiffs to attend the parade, and they cannot sustain the action. This proposition involved a question of fact, and was properly refused. It was not necessarily negligence in the plaintiff to attend the parade. It may have been entirely proper, and does not appear to have been forbidden in any way by the defendant, nor any fault found with the place which the plaintiff occupied, at the time of the discharge of the fire arms which resulted in the injury. It was quite proper, therefore, for the court to decline absolutely to charge that the plaintiff could not sustain the action.
[Albany General Term,
September 3, 1860.
Gould, Hogeboom and Peckham, Justices.]
I have thus reviewed at length all the legal propositions taken by the defendant upon the trial, and am not able to see that any substantial error was committed by the judge-in disposing of them, and I am therefore of opinion that a new trial should be denied.
Judgment accordingly.