Bradley v. Andrews

51 Vt. 530 | Vt. | 1879

The opinion of the court was delivered by

Redfield, J.

This is an action on the case for so carelessly discharging a Roman candle in the public street in the village of Woodstock, that the plaintiff’s son was thereby severely injured.

The defendant was a lad about thirteen years old, and the fireworks had been furnished him by his father, with which to celebrate the Fourth of July.

I. The defendant requested the court to charge the jury that they could not hold the defendant to the same' degree of cafe that they would a man of full age and strength of mind; and that if the injury arose from plaintiff’s son’s own neglect and folly, or if that contributed to the accident, he cannot recover. These requests point to well-settled legal principles, and the court erred in disregarding such requests, provided the case required their application. The case, as stated, is, that the defendant, while exhibiting his fireworks on the evening of July 3, 1875, with a large crowd around him, holding in his hand a Roman candle, discharged two balls “ up street, and at a high elevation.” Some one called out to have the crowd fall back, and to have defendant direct his discharges down street. When this call was made, the defendant turned his candle down street, and lowered the direction, so that the third ball went just above the heads of the company standing in its range. The fourth ball went still lower in the same direction, and hit the plaintiff’s son, and caused the injury complained of.

There is no claim in this case — and there would seem to be no ground for such claim — that defendant was of such tender years that he was irresponiible for tort or crime. It is not even argued that he did not know that such missiles discharged vertically, which exploded high in the air, were harmless, while those discharged horizontally into the face of a crowd of people, were likely to hit and hurt. Nor is there any suggestion that the two balls were discharged horizontally in consequence of intervening accident, but that the candle was voluntarily lowered and discharged.

The defendant, then, voluntarily discharged an explosive missile into a crowd, and injury ensued, and, if responsible for wrong doing, the defendant is responsible for the consequences of the act, for the actual damage caused thereby. If'punitive or exemplary damage were sought, the youth and inexperience of the defendant might be urged in palliation of wantonness or malice. But the jury were limited by the charge to the actual damage. It is to be noted that the defendant was not at the time in the discharge or the performance of any duty or business, but was exhibiting fireworks in the public street for amusement and. the entertainment of the crowd which might gather about him. In Underwood v. Hewson, 1 Stra. 596, the defendant, in uncocking a gun, accidentally suffered it to be discharged, and injury was occasioned thereby. The court held that the act was voluntary and not unavoidable, and that the defendant was responsible for the consequences. And in Vincent v. Steinhour, 7 Vt. 62, 66, the late Chief Justice Williams, speaking of this class of cases, says: “ When a person is doing a voluntary act which he is under no obligation to do, he is held answerable for any injury which may happen to another either by carelessness or accident.” The act of the defendant was voluntary and wrongful, and his youth and inexperience does not excuse him from rendering compensation for the wrong and injury done.

II. The court was requested to charge that if the carelessness or negligence of the plaintiff’s son contributed to the injury, the plaintiff cannot recover. This rule of law is well established, and of universal application ; and the very commendable research of the defendant’s counsel has shown it to be so imbedded in authority that it will not probably be challenged hereafter. But did the case involve or . call for the application of this rule of law ? No act of contributory negligence or carelessness of the plaintiff’s son is suggested by defendant’s counsel, except that he was in the street and in the crowd which the exhibition invited, and within reach of the defendant’s 'missiles. If the fact that the party was in the street where he might be injured is contributory carelessness, then every one knocked down or shot down in the street, has so contributed to the injury that he cannot recover. We think the plaintiff’s son was rightfully in the street in view of defendant’s exhibition, and that the fact that he was there does not make him the'active agent in inflicting'the injury which he suffered.

Judgment affirmed.