284 Mass. 63 | Mass. | 1933
The plaintiff’s declaration alleges that while on a duck hunting trip in Maine he was shot and injured by “the negligence and wilful, wanton, or reckless act” of the defendant. A judge of the Municipal Court of the City of Boston found for the plaintiff on the ground that negligence of the defendant caused, and that negligence of the plaintiff did not contribute to, the plaintiff’s injury. From an order of the Appellate Division dismissing a report the defendant has appealed.
At the time of the plaintiff’s injury the plaintiff and the defendant were in a flat bottomed boat in a duck blind on a lake. The blind consisted of stakes loosely driven into the bottom of the lake, and a covering of boughs and brush' by which the occupants were concealed from view. The boat, which was about sixteen feet long, was not anchored. It was tied to the blind in some way at the bow and stern but obviously not so securely fastened'1 that movements of the occupants might not cause some movement of the boat. Just before the plaintiff’s injury he had been seated in the bow of the boat and the defendant on a thwart about three or four feet behind the plaintiff; both were facing forward. Their guide sat in the stern.
The testimony taken in the aspect most favorable to the plaintiff does not support the defendant’s contention that the evidence did not warrant the finding that the shot
The precise manner in which the defendant stood up his gun or the exact way in which it came to be pointed, as it indubitably was pointed, at the plaintiff at the instant of
There was evidence therefore which required the trial judge to measure the conduct of the defendant by the standard of the conduct of a man of reasonable prudence in the same situation. The quantity of care required of a person increases with any increase in the likelihood of harmful consequences to others if adequate care is not used. It is manifestly more dangerous to stand up in a boat in a precarious position a loaded gun than to do the same thing with a boat hook. Care commensurate with the extent of danger likely to come from the circumstance that the gun was loaded and the safety off was required of the defendant. But the liability of one handling or controlling a loaded gun does not, as the defendant contends, depend upon gross negligence; it exists if there is a failure to use the care which would have been used by a person of reasonable prudence in all the attendant circumstances. Whitten v.
The defendant requested the ruling that “Where plaintiff and defendant are gunning together, negligence of defendant must be gross to cause liability.” He bases his argument in support of his exception to the denial of this request upon the assumption that at the time the plaintiff was injured the parties were engaged in a joint enterprise. Whether or not the parties had been so engaged while reaching the spot where they were and intended again to resume that relationship while returning does not determine the pertinent question whether at the time of the accident a joint enterprise was in force. (See Beaucage v. Mercer, 206 Mass. 492, 498.) There is nothing in the record which affords the basis for the finding that the plaintiff at the time of the accident had the right or the power to control the use or the disposition that the defendant should make of his own gun. It follows that a finding of a joint enterprise then existing could not have been made. A joint enterprise of two persons which affects legal liability for negligence does not exist unless each has an equal right to direct and control the conduct of the other concerning acts or omissions which cause, or contribute to the causation of, injury. Barry v. Harding, 244 Mass. 588. Caron v. Lynn Sand & Stone Co. 270 Mass. 340, 346. Thompson v. Sides, 275 Mass. 568, 570. It is not necessary to consider the rights of the parties if they had been engaged in a joint enterprise. (See Loftus v. Pelletier, 223 Mass. 63, 65.) The defendant’s request for a ruling was properly denied.
Order dismissing report affirmed.