Manning v. Jones

Hart, J., (after stating the facts). It is insisted by counsel for appellant that the court erred in directing a verdict for appellees, and in this we think counsel is correct. Assuming that the defendants had a right to be on the premises and to hunt there, this fact of itself did not absolve them from liability under the facts stated. The test of liability is, not whether the injury was accidentally inflicted, but whether the defendants were free from blame. Mr. Thompson, in drawing the distinction between an intentional shooting and a shooting by mere accident, says: “But where the weapon is accidentally and not purposely pointed at another, * * * the liability of the person pointing it will depend upon the answer to the question whether he was guilty of negligence, or whether it was the result of pure accident, unmixed with negligence. Here, as in other cases, the test of the liability of the defendant is whether, in what he did, he failed to exercise reasonable or ordinary care. And here, as in other cases, the reasonable care which persons using firearms are bound to take in order to avoid injury to others is a care proportionate to the probability of injury; and the principle is applicable that he who does what is more than ordinarily dangerous is bound to use more than ordinary care. Whether, in case of an injury proceeding from such a cause, ordinary or reasonable care was used by the person inflicting it will in almost every case present a question for a jury.” Thompson, Negligence, § 780, and cases cited. This principle of law has been recognized by the court in the case of Bizzell v. Booker, 15 Ark. 308. In that case the complaint alleged that the defendants, who had camped in the woods adjacent to plaintiff’s cotton shed for the purpose of hunting, had, by the negligent management of their camp fire, set the 'woods on fire, and that the fire had extended to the shed and consumed plaintiff’s cotton. The court held (quoting from syllabus) : “Where one is doing a lawful act — or an act not mischievous, rash, reckless or foolish, and naturally liable to result in injury to others — he is not responsible for damages resulting therefrom -by accident or casualty, while he is in the exercise of such care and caution as a prudent man would observe, under the circumstances surrounding him, to avoid injury to others; but he is answerable for damages resulting from' negligence, or a want of such care and caution on his part.” In discussing the liability for the negligent use of firearms, in the case of Hankins v. Watkins, 77 Hun (N. Y.) 360, the court held: “When one does an illegal or mischievous act which is likely to prove injurious to others, or when he does a legal act in such a careless and improper manner that injury to third persons will probably ensue, he is answerable, in some form of action, for all the consequences which may directly result from his conduct. It is not necessary, in order to justify an action against him, that he should intend to do the particular injury which follows, or any injury at all.” See also Moebus v. Becker, 46 N. J. L. 41; Welch v. Durand, 36 Conn. 182; Judd v. Ballard, 66 Vt. 668. It is undisputed that the sight of one of appellant’s eyes was destroyed by a gunshot wound, and the court should have submitted to the jury the question whether the gun was discharged by either of appellees, and, if so, whether he was at the time in the exercise of such care and caution to avoid injury to others as a prudent man would observe under the circumstances surrounding him. For the error in giving the peremptory instruction in favor of appellees, the judgment is reversed, and the cause remanded for a new trial.