105 P. 957 | Cal. | 1909
The plaintiff, having been wounded by a bullet fired from defendant's rifle, brought this action to recover damages, alleging that his injuries were due to defendant's negligence. A trial before a jury resulted in a verdict in favor of plaintiff for five hundred dollars. The defendant appeals from the judgment entered upon the verdict, and from an order denying his motion for a new trial.
The action was commenced in December, 1906, about fourteen months after the shooting. The defendant filed an answer, in which he denied the allegations of the complaint, and affirmatively pleaded facts intended to constitute a defense of contributory negligence. On the day set for the trial of the cause, he moved the court for leave to amend his answer by setting up the additional defense that the action was barred by subdivision 3 of section
The main question arises on the instructions of the court, whereby it declared that plaintiff was entitled to a verdict, and that the only question for the jury was the amount of damages. Instructions requested by defendant, submitting to the jury the issue of contributory negligence, were refused. It appeared from plaintiff's testimony that on October 10, 1905, he, in company with the defendant and one Lima, went out along the Big River in Mendocino County to hunt deer. On the north bank of the river they parted company. Byrnes and Lima remained on the north side. The plaintiff, Rudd, crossed the stream, taking a dog with him. The dog started along a ridge and down through the brush into a flat across the river from Byrnes. Rudd thought the dog was after a deer, and ran in after. When he came out on the flat opposite Byrnes, he heard a shot and was struck by a bullet. There was no question of the fact that Byrnes fired this shot. His own testimony was that he saw an object moving in the brush, and fired at it, thinking it to be a deer.
The testimony relating to the issue of contributory negligence, as relied on by defendant, differed in some particulars from the allegations of the answer. Since, however, the point of variance does not appear to have been made in the court below, and the differences have no important bearing on the points to be discussed, it will be sufficient to state the substance of the showing made by the witnesses. There was evidence which would have warranted the jury in finding that the banks of the river were thickly grown with brush; that along the river there were deer-crossings "where deer come down when chased by dogs and run into water." It was testified that the three hunters had agreed that they were, respectively, to station themselves at three crossings, Byrnes's station being about two hundred yards above and Rudd's about the same distance below that of Lima. When Byrnes fired he was at the point at which, under the agreement, he should have been. Rudd, instead of going down the river, as agreed, went up, and was opposite Byrnes's station when shot.
We think the defendant was entitled to have the jury consider this evidence and determine from it whether Rudd had been guilty of negligence contributing directly and proximately *640
to his injuries. That the defendant's conduct was negligent may well be conceded. "As firearms are extraordinarily dangerous, a person who handles such a weapon is bound to use extraordinary care to prevent injury to others, and is held to strict accountability for a want of such care." (12 Am. Eng. Ency. of Law, 2d. ed. p. 518; Bahel v. Manning,
But the fact that defendant was negligent does not preclude the possibility that plaintiff may have been likewise guilty of negligence contributing to the injury. In Magar v. Hammond,
As we have said, the question of negligence is ordinarily one for the jury, and this applies as well to contributory negligence as to that claimed to inhere to the conduct of defendant. The facts here shown were certainly not such as to preclude an inference that plaintiff had been guilty of negligence *642 contributing directly to his injury. Whether or not there had been an agreement by which plaintiff was to station himself at a point several hundred yards away from defendant; whether plaintiff had departed from that agreement; whether such departure displayed a want of the care that would be exercised by a reasonably prudent person in plaintiff's position and whether such departure was, in whole or in part, the proximate cause of plaintiff's injuries, were all questions which might, under the evidence, have been answered favorably to defendant's contention. They should, therefore, have been submitted to the jury. It certainly cannot be said, as matter of law, that the presence of plaintiff in the brush, opposite the point where, as he knew, Byrnes had taken his stand for the purpose of shooting a deer which might come through the brush, was not negligent. Nor, in view of Byrnes's testimony that he was led to fire by movements seen in the brush, can it be said, as a matter of law, that there was no causal connection between Rudd's actions and his being wounded by the shot.
For the purposes of a new trial, which is made necessary by what we have said, the other points made by appellant may be briefly mentioned. We think the court did not err in rejecting evidence of the custom of hunters along coast rivers. The standard of care required of persons under given circumstances is not to be established by proof that others have been in the habit of acting in a certain manner. (Pulsifer v. Berry,
The court should have allowed evidence of plaintiff's statements to the effect that the injury resulted from his own fault. They were declarations of a party, against his interest. (Code Civ. Proc., sec. 1870, subd. 2.) But here the facts were fully shown by plaintiff's own testimony, and the exclusion of his mere conclusion on the issue which was finally to be *643 determined by the jury could not have been prejudicial to appellant.
The judgment and the order denying a new trial are reversed.
Angellotti, J., Shaw, J., Lorigan, J., Melvin, J. and Henshaw, J., concurred.