JENKS, J.:

The action is against a master for misconduct of his servant. The servant was driving the master's private sleigh, wherein were the children of the master, along a public highway. The plaintiff, a lad ten years old, who jumped onto the runner of the sleigh, was struck by the servant with a whip. If the act was committed by the servant in the scope of his employment the master was liable. ( Hewson v. Interurban St. R. Co., 95 App. Div. 112, and authorities cited; Grimes v. Young, 51 id. 239; Magar v. Hammond, 183 N.Y. 387.) I think that the evidence justified a finding that the act was committed in the scope of the defendant's employment. The lad had jumped onto the runner of the sleigh, and it is clear enough that the servant, as the driver of the sleigh, was seeking to put him off. Indeed, the servant testifies that he told the lad to get off; that the lad refused, and that he thereupon struck the lad twice. If the jury were justified in finding that in the act of putting the lad off the sleigh the servant, through misjudgment or violence of temper, went "beyond the necessity of the occasion" ( Rounds v. Del., Lack. W.R.R. Co., 64 N.Y. 129, 136), then the master might be held liable. The jury could have found properly that in seeking to put off a schoolboy ten years old from the runner of the sleigh the servant passed beyond the bounds of necessity when he struck the lad in the forehead with the butt end of the whip, so that he fell to the ground stunned and bleeding, with a "pretty severe cut" that required the attention of the surgeon.

The learned counsel for the appellant contends that the servant was attempting to punish the lad for snowballing him, inasmuch as the plaintiff and his companion had thus annoyed the servant. The lad testifies that on this day, although there was snowballing among the boys, nothing was thrown at the driver or his horse. He is corroborated by his companions and by one of the children of the defendant in the sleigh, who testifies that although snowballs had been fired at the horse and the man on that day, it was before "we got to Arthur Dealy" (the plaintiff), and that "Arthur didn't do any snowballing that day." The learned counsel also contends that the master is not liable because the boy had desisted before the assault. But the testimony shows that even if the lad jumped off the runner to avoid the first blow or after receiving it, he was still running along with his hands on the back of the sleigh. This justifies a conclusion that he had not gone away, but still held on to the sleigh, evidently with the purpose of seeking to get onto the runner again.

The plaintiff complains that the servant "without any legal cause or justification, carelessly, negligently, wrongfully and violently struck the plaintiff upon the head and face," etc. The terms of the charge rather indicate that the learned court regarded the action as one for negligence, and the learned counsel for the appellant took that view as is shown by his specific requests to charge. This was not the theory of the learned counsel for the plaintiff, however, as appears from his final request to charge. I think that his view was correct, in that there was no duty of affirmative care owed by the defendant to the plaintiff. ( Magar v. Hammond, supra.) I think, however, that the facts warrant the finding by the jury casting liability upon the master, within the rules of liability under the authorities heretofore referred to, and the judgment must stand. (See Johnson v. N.Y.C. H.R.R.R. Co., 173 N.Y. 83.) In such an action contributory negligence is not a defense. ( Hewson v. Interurban St. R. Co., supra; Magar v. Hammond, supra.) The defendant is not prejudiced by this view of the trial court if such was its view, that was concurred in by his counsel, for there is no ruling, exception, request or motion that harms him. Contributory negligence under the circumstances would be a question of fact for the jury and not a question of law as the learned counsel contended before the trial court.

The judgment and order must be affirmed, with costs.

HOOKER and RICH, JJ., concurred; WOODWARD, J., dissented.

Judgment and order of the County Court of Westchester county affirmed, with costs.