Horton v. Wylie

WiNSLÓw, J. The trial judge charged the jury, in substance, that under the facts shown the plaintiff was entitled to recover his actual damages, because the defendant was at the time of the shooting violating the law of this state forbidding a minor from being armed with a dangerous weapon (sec. 43975., S. & B. Ann. Stats.), by reason of which viola508 tiou tbe injury complained of occurred. Tbis instruction was duly excepted to, and tbe defendant, on tbe other band, requested the following instruction, which was refused, and exception taken: “If tbe jury are satisfied from tbe evidence that tbe boys, Ralph Wylie and Glarh Horton, at the spot where tbe shot occurred, had tbe revolver there in common, both taking part freely in the use of it for tbe purpose of play and amusement, and for no other purpose, and with no other intent on the part of either, and that the shot was the result of pure accident, caused by the boy, Glarh Horton, throwing up his hand and striking the revolver and causing it to explode, and thus causing the whole of the injury complained of, the jury should find for the defendant.” The rulings of the trial judge were plainly right. The case is ruled by the case of Evans v. Waite, 83 Wis. 286, 53 N. W. 445, where it was held that the accidental discharge of a revolver in the hands of a minor, by which another was injured, was an actionable wrong, and that a verdict for the plaintiff for compensatory damages was properly directed on such a showing, notwithstanding the fact that the plaintiff knew that the defendant was armed, and consented thereto. The present case is even stronger than Evans v. Waite, because in this case the defendant was not only violating the law forbidding minors to go armed with a revolver, but was also violating sec. 4391, S'. & B. Ann. Stats., which makes it unlawful for any one to intentionally point a gun or pistol at another. There are some assignments of error based upon tire rulings upon evidence, but they are plainly not well founded, and we do not deem them of sufficient importance to justify detailed discussion. By the Court. — Judgment affirmed. BaedebN, J., took no part.