The brief submitted to the Supreme Court of New York County covered the law of assault. The opinion of that Court in Gross v. Goodman, 173 Misc. 1063, 19 N.Y.S.2d 732, 734, states in part: 'It is a penal offense for a person, otherwise than in self-defense, or in the discharge of official duty, to wilfully discharge any species of fire-arm in a public place or in any place where there is any person to be endangered thereby, although no injury to any person ensures. * * * Death resulting from an act of culpable negligence may constitute manslaughter. * * * The defendant was not acting in self-defense or in the discharge of official duty, and hence had no lawful right to discharge his pistol-- which was a wilful and intentional act. ' (Italicizing, this court's)
Townsend v. McCollum, 175 N.C. 698, 95 S.E. 364; Farrow v. Hoffecker, 79 A. 920 (Del. 1906). Also in other situations: Sitton v. Twiggs, 213 N.C. 261, 195 S.E. 801; Gross v. Goodman, 19 N.Y.S.2d 732 (1940); Wright v. Clark, 50 Vt. 130 (1862). But the courts are now inclined to modify the rule and enlarge the scope of exceptions to this rule of absolute liability. ". . . clearly, the modern tendency of the court is to apply the general rule of negligence where injury or death has been inflicted by missiles from a firearm, and to permit the defendant in an action for damages to show in defense his freedom from negligence in causing the injury complained of."
There is no clear cut definition and a dearth of precedent in the law which allows us to establish this fact. This area of the law is very nebulous for such a commonly used legal term" ( People v Wicker, 18 Misc.2d 811, 813 [Onondaga Town Ct, 1974]; see also, People v Jacobus, 17 A.D.2d 223 [3d Dept, 1962]; Gross v Goodman, 173 Misc. 1063 [Sup Ct, N Y Co, 1940]). Although a precise definition of "public place" is not provided, in our view the Penal Law provsion is intended to prohibit discharge of weapons in those places where there is an unreasonable danger to persons.
Further, as precluding, at this stage, a claim of excusable homicide by virtue of "accident and misfortune * * * in doing any other lawful act, by lawful means, with ordinary caution, and without any unlawful intent" (Penal Law, § 1054), is the defendant's admission, in effect, that he purposed to discharge the revolver in a place where there was a "person to be endangered thereby" (Penal Law § 1904, subd. 4, par. [a] [as renumbered in 1963 from former § 1906]). Pertinent is the language of EDER, J., in Gross v. Goodman ( 173 Misc. 1063, 1064): "It is a penal offense for a person, otherwise than in self-defense or in the discharge of official duty, to willfully discharge any species of firearm in a public place or in any place where there is any person to be endangered thereby, although no injury to any person ensues. (Penal Law, § 1906.)
The failure to enforce such protective measures is neglect. An unknown, undirected and uncontrolled freedom of movement permitted to John Myzdian on Sunday afternoon, and in particular Sunday afternoon, July 15, 1962, is another indication of defendant's neglect of duty. Liability follows when an injury is the natural and proximate consequence of neglect of duty ( Croniser v. State of New York, 195 Misc. 576). Where one does an act in such a careless and improper manner that injury to third persons may probably ensue, he is answerable in some form of action for all the consequences which may directly and naturally result from his conduct ( Gross v. Goodman, 173 Misc. 1063). This neglect of duty was the proximate cause of the resultant injury. Such neglect constitutes actionable negligence.