81 Wis. 239 | Wis. | 1892
The facts of this case, so far as necessary to make the decision intelligible, are substantially as follows: Some time prior to the 5th day of October, 1889, the defendant, a resident of the city of Oshkosh, and the father of the boy Eobbie Oameron, of the age of about eleven years, bought at the hardware store of Webb & Eundles in said city, for his son Eobbie, a metallic air-gun, called the “ Daisy Air-G-un,” to replace a wooden air-gun that Eobbie had formerly had and used; and Eobbie had played with and used this air-gun to shoot at a mark, and perhaps small birds, about his home and in the neighborhood, for some time. On the date aforesaid, two neighboring boys, Bud Thompson, about the age of nine years, and Byron Harris, the plaintiff, of about the age of fourteen years, who, with Eobbie, had been in the habit of visiting and playing with each other, came to play with Eobbie at his home,— Byron on stilts, and Bud on a safety bicycle. Eobbie was playing with his air-gun, and Bud let Eobbie use his “ safety,” in exchange for the gun. Bud fired it several times, and finally aimed it at Byron, who said, “ Stop; don’t! ” Bud then rested the gun on a board, a part of a grape trellis, and aimed it again at Byron, who tried to move out of the way a little on his stilts, and Bud fired, and shot Byron in the left eye, by which it was destroyed. This kind of air-gun was usually loaded with BB
This court can take judicial knowledge of the nature and uses of this ern-gun, as it can of “ deer” (Briffitt v. State, 58 Wis. 39), or of “gas” (Shepard v. Milwaukee G. L. Co. 6 Wis. 539), or of an express or freight “ car ” (Nicholls v. State, 68 Wis. 416). It may be properly said, both from the evidence and common knowledge, that this kind of airgun was often kept for sale by toy and hardware merchants •, and, if not generally, was much, used by boys about the ages of these three boys, in the villages and cities of this-state. And it may also be said that this kind of gun was manufactured as a toy; sold, bought, and generally used as a toy, and harmlessly. It is so generally known that a particular description of it is not necessary. The power is. air pressure, which is forced into a small space in the small barrel by a plunger; and by a movement of the trigger the compressed air escapes outwardly, and forces out the shot with considerable force.
It should be said that the boy Bud Thompson did not intend to shoot Byron in the eye or face. Discharged against the clothing, it would have been harmless, and so he probably intended. Whatever may be said of the continuity of dependent causes which connect the defendant with this act of the boy Bud Thompson, it was an act of carelessness on the part of this boy who did the shooting. He aimed at Byron, and intended to shoot him in some place, and it is questionable whether he is not primarily and independently liable to the plaintiff for the injury. But this action is brought against George IT. Cameron, the father of the boy Bobbie, who loaned the gun to Bud
This case presents very important and unusual questions of law in connection with the facts, and they have been presented to this court and discussed by eminent counsel on both sides with great learning and ability. The two main questions are: First. "Was the defendant guilty of an act of culpable negligence, per se, in buying this air-gun for his boy? Second. If so, pould he have reasonably anticipated or expected such a dangerous and improper use of it by the boy Bud Thompson? If it is held that the defendant was not guilty of an act of negligence, per se, in so buying the gun, then it becomes necessary to decide the second question.
We are clearly satisfied that it was not an act of culpable negligence on the part of the defendant. The act or fact must be such that the negligence can be directly and logically inferred from it. Wood v. C., M. & St. P. R. Co. 51 Wis. 196. The defendant’s negligence must be proved, and cannot be presumed. Chamberlain v. Mil. & Miss. R. Co. 1 Wis. 425; Steffen v. C. & N. W. R. Co. 46 Wis. 259; Denby v. Willer, 59 Wis. 240. The defendant’s negligence in buying this article for his son and giving it to him to use, must mainly depend upon the nature and uses of the thing itself. What is it ? It is called an “ air-gun.” A gun, in the usual sense, is a “ weapon which throws a projectile or missile to a distance; — a fire-arm, for throwing a projectile with gunpowder.” A weapon is “ an instrument of offensive or defensive combat; something to fight with.” Webst. Dict. A fire-arm is a “ weapon which acts by the force of gunpowder.” Id: Our statute (see. 1, ch. 116, Laws of 1882, and sec. 2, ch. 329, Laws of 1883)
In all of these cases the thing in itself, and when used in the manner and for the purposes for which it was made, and when put to its ordinary or common use, is harmless, .and yet may be used exceptionally for personal injury. It is easy to convert almost any good thing into an evil by improper use. What shall we say, then, of this toy gun? It is not dangerous in itself, and was not intended to be dangerous or to do mischief. It was designed for a mere
In any view that can be taken of this device as a toy or plaything, but which can possibly be put to a dangerous use, it would be illogical and unreasonable to hold that the defendant was guilty of culpable negligence" in buying it for his boy, and ought to have reasonably expected that such an unusual and extraordinary consequence would follow it. He is only chargeable with ordinary care, such as fathers generally would exercise under like circumstances. Parish v. Eden, 62 Wis. 272. It was held in Hagerty v. Powers, 66 Cal. 368, that the father was not liable for giving his eleven-year-old boy a loaded pistol to play with, and an accident happened by the boy’s careless use of it.The court said in that case that “ we have been cited to no case controlled by the principles of the common law that holds that the action, under such circumstances, can bé
It is sufficient for this case that it would not have been negligence if the defendant’s own son had committed the act, because he could not have reasonably anticipated or expected such a result. We will not, therefore, consider whether there was not the intervention of a new and independent cause for the injury in another boy committing the act. If he could have reasonably expected such a result, it must have been from the nature and character of this toy gun alone, for there was nothing else proved on which to predicate such an expectation. The question is whether the defendant was guilty of negligence in so buying the gun for his boy, not having any reasonable expectation of any such result. We have shown that the negligence of the defendant could not be inferred- — first, from the nature of the airgun itself; and, second, from the fact that he ought to have reasonably expected such a result. His negligence cannot be inferred from what he did, or from any of the reasonably expected consequences of it.
By the Gowrt.— The judgment of the circuit court is affirmed.