116 P. 581 | Mont. | 1911
delivered the opinion of the court.
In March, 1909, the defendants in this action and certain other individuals composed the Missoula Gun Club, a voluntary association formed for the purpose of practicing shooting at inanimate targets. The associated members were in possession of certain grounds, traphouses, warehouses, and other paraphernalia where their practice was carried on. Three or four days prior to the accident, a new traphouse had been constructed, and in it installed an automatic trap for throwing the clay targets. The trap itself was set in the ground about two feet, and was operated by a loader who sat behind it, placed the target in position, and then fixed the angle» at which it should be discharged by working the trap with his feet. The trap was actually sprung and again placed in position to be loaded by a man who stood ■on the outside of the traphouse behind the shooters, and worked a lever connected with a rod which in turn connected with the trap. The shooters stood about sixteen yards from the trap-house, and shot directly over it, or to one side or the other, according as the target was discharged directly from the trap or at an angle. On March 21, 1909, these defendants were at -these grounds, practicing. They employed the plaintiff to load and work the trap, and this work required him to be in the traphouse. During the course of the day a Mrs. Stephens, a guest of the members, undertook to shoot. The gun which she held was prematurely discharged. Some shot passed through a crack in the back of the traphouse, and penetrated the face of plaintiff, causing injuries. This action was commenced by the plaintiff, through his guardian, to recover damages on the ground of negligence. The defendants answered, denying any negligence, and pleading affirmatively contributory negligence and assumption ■of risk. The trial resulted in a verdict and judgment in favor of plaintiff, and from that judgment and an order denying them a new trial defendants have appealed.
1. It is elementary that, in order for plaintiff to recover, he must show that the negligence charged was a proximate cause of his injury. ‘ ‘ Causa próxima, non remota, spectatur. ’ ’ In Mize v. Rocky Mt. Bell Tel. Co., 38 Mont. 521, 129 Am. St. Rep. 659, 100 Pac. 971, this court defined “proximate cause” as follows: “The proximate cause of an injury is that which in a natural
In the complaint it is alleged that plaintiff was injured “while inside said traphouse, and then and there engaged in the performance of his duties in loading the trap.” And, again, it is
The evidence discloses without contradiction these facts: The practice by the members of the club was over when the defendant Steinbrenner went to the traphouse and spoke to the plaintiff, who left his position behind the trap, and told him to set the trap to throw the targets straight away, as some women were going to shoot; that the trap wras then loaded; that, when plaintiff returned, another boy, Frank Shunk, had taken plaintiff’s position behind the trap; that plaintiff stood to the right of Shunk and to the right of the center of the house, and soon afterward turned and saw this opening in the back wall or the wall which was intended to protect him from the shooters, and looked out through it, turned away, and soon thereafter again placed both eyes up to the opening, looked out, saw a woman standing back at the shooters’ position, and while thus engaged was injured. It may be conceded that but for the opening the injury would not have occurred; but this alone is not sufficient. It must appear that the discharge of the shot through this opening would have produced the injury or, in other words, that there was not any new, independent intervening agency. In Mize v. Rocky Mt. Bell. Tel. Co., above, in discussing the subject of an intervening cause, this court said: “What intervening
Can it be said, then, that these defendants ought to have anticipated that some injury was likely to result to plaintiff,
2. The evidence discloses that the boy Shunk went into the traphouse without the knowledge of any of the defendants, but with the permission of the plaintiff, and was told by plaintiff that he might load the trap for a time. It appears from plaintiff’s own testimony that at the time of his injury he was sixteen years of age; that for four years or more he had been engaged in loading traps during the spring, summer, and fall of each year; that he was familiar with the use of firearms and understood and appreciated the dangers arising from their use; that he knew defendants and their guest were using shotguns for practice there at that time; that he knew that the load scatters after leaving the muzzle of a shotgun; that he knew that shot had scattered and lodged in the back of the traphouse before the time Mrs. Stephens undertook to shoot; that he knew and appreciated the fact that the house was for his protection, and so jealous was he of his own safety that he would not leave the house until he had attracted the notice of the shooters and someone had come to his relief, and would not even place his hand outside of the house for fear of having it shot; that while looking out through the opening he was expecting every moment that the trap, which was loaded, would be sprung by the man from the outside, and that a shot would be fired directly over the house. As a part of his cross-examination he testified: “ Q. While you were expecting this shot, you turned around, looked through the crack to see what you could see? A. Yes, sir. Q. Who could you see through that crack at that time? A. Saw a lady standing there; just a second, that is all. * * * Q. You knew when you looked back there that, if somebody happened to shoot just as you looked back, you might get hit in the eye with the shot ? A. I knew it, but I didn’t think about it. * * * Q. You had seen through this crack once? A. Yes, sir. Q. And you wanted to see through it again ? A. Take a good look, I guess.
The evidence is conclusive of the fact that at the time he was injured plaintiff was not engaged in the discharge of his duty.
That the plaintiff knew and fully understood and appreciated the danger of looking out through the opening cannot be in
3. It is insisted that the defendants should have warned the plaintiff, and, in failing to do so, were guilty of negligence. The duty of warning implies knowledge of danger, and a warning in this instance would have implied knowledge of the existence of the opening; while, in fact, there is not any evidence that any one of the defendants knew of the opening, but, on the contrary, the evidence, so far as it goes, discloses that they did not know the opening was there, and, of course, if they did not know of its existence, they could not warn against the danger arising from it. But, assuming that they did know of its existence or that the duty to warn may arise from knowledge implied, what warning could the defendants have given the plaintiff i They might have said to him: “There is an opening in-the back of the traphouse to the right of the center and to the right of your place of work. Some women are going to shoot at targets thrown straight ahead, and therefore will shoot directly toward and over the house and the opening. The guns may scatter, and stray shot may pass through the opening. Don’t leave your place of work and look out through the opening or shot may strike you in the face or eyes, and, if they do, you will be injured, probably seriously. ’ ’ In 4 Thompson’s Commentaries on the Law of Negligence, section 4055, the rule of duty is stated as follows: ‘ ‘ Generally speaking, an employer is bound to warn and instruct his employees concerning dangers known to him, or which he should know in the exercise of reasonable care for their safety, and which are unknown to them, or are not discoverable by them in the exercise of such ordinary and reasonable care as, in their situation, they may be expected and required to take for their own safety; or concerning such dangers as are not properly appreciated by them, by reason of their lack of experience, their youth, or their general incompetency or ignorance.” The plaintiff knew that the opening was there, and had looked out through before he
While it is of the utmost consequence that a minor servant should have full knowledge and appreciation of the dangers connected with or surrounding his employment, it does not follow necessarily that the master must instruct him. If he has the knowledge and appreciation of the danger, it is wholly immaterial whether his knowledge and appreciation are gained from his own observations and experience, from information and advice given him by others, or from warning and instructions of his master. (Kuphal v. Western Mont. F. Co., 43 Mont. 18, 114 Pac. 122.) Whether we assume that the defendants were negligent in some of the particulars charged, and that plaintiff was guilty of contributory negligence, or treat the evidence as showing that plaintiff’s negligence was the sole efficient cause of his injury, the result is the same. Upon the record presented, the trial court should have directed a verdict for the defendants, as it was requested to do.
Reversed and remanded.
Rehearing denied June 22, 1911.