THURMAN TUCKER, JR., a Minor, etc., et al., Appellants, v. PHILIP LOMBARDO, Respondent.
L. A. No. 24263
In Bank
Dec. 7, 1956
47 Cal. 2d 457
Let the peremptory writ issue as prayed for.
Gibson, C. J., Shenk, J., Carter, J., Schauer, J., Spence, J., and McComb, J., concurred.
Moss, Lyon & Dunn, Gerold C. Dunn and Henry F. Walker for Respondent.
Plaintiff Thurman Tucker, Jr. (hereinafter called Tommy), a 12-year-old boy, had been employed on Saturdays and Sundays for about three months at the Dominguez Skeet Range. On Sunday morning, May 3, 1953, the day of the accident, Tommy was ordered to work at the “high house,” a towerlike building. His job there was to load a spring apparatus, known as a Remington Trap Machine, with “clay birds” or targets. He had done this work on about six previous occasions. The high house had an opening shielded by metal plates, through which the bird was ejected when another employee, operating in the control house, pressed a button effecting the bird‘s release. In skeet shooting, the gunner takes a “ready position” at the firing line and calls “pull.” Upon this command the operator in the control house presses the button which releases the bird in the trap machine. Tommy, while working in the high house, was struck by shot discharged from a gun held by defendant, who was shooting from station number 8 on the skeet range. Tommy thereby lost the sight of one eye.
The range where the accident occurred was laid out in a half circle. Station number 1 was at the high house, number 7 was at the low house, and the intervening numbered stations formed a semi-circle arching to the south. Station number 8 was located at the midway point of an east-west line running from station number 1 to station number 7, and was about 60 feet to the east of the high house. When the bird was released from the high house for a gunner at station number 8, its path of flight would be toward the “breaking point,” which was 18 feet north of station number 8 and the point beyond which the bird, if hit, would not count as a score. It apрears that for scoring from station number 8, the travel distance for the bird, after emergence from the high house and before reaching the breaking point, would be about 67 feet. The bird, when ejected from the machine, traveled at 60 miles an hour or 90 feet a second, so that the shooter had only about two-thirds of a second in which to
The high house from which the bird was released was built of 2 by 4 framing lumber, which was covered by corrugated metal. It was 9 1/2 feet high, 60 inches wide and 60 inches deep. The opening through which the bird was ejected, and behind which Tommy was employed in loading the trap machine, was in the east wall and was 7 inches long and 7 inches wide. The opening was shiеlded by two metal plates attached to the outer wall. The trap machine was mounted on a wooden shelf which extended 25 1/2 inches back from the east wall of the high house. From the edge of this shelf to the rear or west wall of the house was 34 1/2 inches. Tommy testified that in operating the trap machine, he would place a bird in the machine and cock it by pulling down a throwing lever; then he would step back to the wall behind him so as tо be clear of the upward swing of the throwing lever. After the operator in the control house released the bird, Tommy would step forward toward the machine and reload it. There was no communication between the high house and the control house, and Tommy would step forward to reload without knowing whether a gun was fired at the released bird. While he could hear the discharge of a gun if there was not too much noise from the lеver operating, he could not tell from which range or at what bird it was fired.
Defendant Lombardo was using a 12-gauge over-and-under shotgun, with which he was familiar. He had shot skeet once or twice previously. Standing in a “ready position” at station number 8, he looked toward the high house, called “pull” as the signal for the operator, and waited for the bird to emerge. He testified that he raised his gun and fired as the bird was approximately 2 feet frоm the high house. A second or two later defendant heard Tommy “holler” and saw him come out of the high house.
Tommy testified that after the bird had been released, he stepped forward to load the machine; that he was reaching for one of the birds stacked on the shelf alongside the machine when he was struck by some pellets from the shotgun; that he was thrown against the wall and his face was bleeding. One of the pellets caused а double perforation of his right eye, which was subsequently removed.
At defendant‘s request, the court gave the following instruction: “You are instructed that the duty owed by the defendant to the plaintiff in this case was to exercise ordinary care, that is the care that would be exercised by a reasonably prudent person in the same or similar circumstances. In this particular instance, however, the defendant was possessed of and using a firearm and a firearm is capable of causing severe injury. For that reason the defendant was required to foresee the possibility of injury and, to avoid it, to exercise a degree of care commensurate with and in proportion to the danger involved, and, in the exercise of ordinary care, the quantum or amount of care exercised may be greater than would be necessary if he was not handling a loaded weapon. This is but another way of saying that the amount of care to be exercised by a reasonably prudent person will vary with the circumstances, and where the danger of injury is greater the amount of care to be used may be great.” (Emphasis added.)
With reference to this latter point, it should be said that the instructions which plaintiffs did propose upon the subject were incorrect and were properly refused because they attempted to place the burden of proof upon defendant to show that he was not negligent. (Jensen v. Minard, supra, 44 Cal.2d 325, 328-329.)
While the challenged instruction is not a model, it must be read with the other instructions and in the light of the circumstances, in determining whether there was any prejudicial error. It was only one of a series of instructions given on this phase of the case. Thus, the trial court first defined “negligence” (BAJI 101), and then stated that it was “not an absolute term, but a relative one,” so that “in deciding whether there was negligence in a given case, the conduct in question must be considered in the light of all the surrounding circumstances” (BAJI 101-A). Next, the court defined “ordinary care” (BAJI 102) and amplified that standard as follows: “Inasmuch as the amount of caution used by the ordinarily prudent person varies in direct proportion to the danger known to be involved in his undertaking, it follows that in the exercise of ordinary care, the amount of caution will vary in accordance with the nature of the act and the surrounding circumstances. To put the matter in anоther way, the amount of caution involved in the exercise of ordinary care increases or decreases as does the danger that reasonably should be apprehended.” Then followed the challenged instruction concerning the application to the use of firearms. In the challenged instruction it was stated as a matter of law that “a firearm is capable of causing severe injury” and
The factual situation also has significant bearing on this point. Apparently defendant did exactly what he was supposed to do according to the generally accepted skeet rules and the particular practice on this range. In fact, the photographs of the high house showing how it had been peppered with shot indicate that defendant‘s shooting in that direction from station number 8 was precisely what was expected of him. The skeet shooting expert testified, without contradiction, that because the difficulty of a shot from station number 8 steadily increased as the bird approached the breaking point, it was customary and in accordance with nationally recognized rules for the shooter to point his gun at the high house and fire immediately upon the bird‘s emergence therefrom.
There was no error in receiving evidence of the rules, practices and customs of skeet shooting. They have a direct bearing on the question of negligence even though they do not of themselves establish the standard of prudent conduct. (Fowler v. Key System Transit Lines, 37 Cal.2d 65, 68 [230 P.2d 339]; Hargrave v. Acme Tool & Tester Co., 125 Cal. App. 2d 34, 39 [269 P.2d 913].) Defendant did not know, and so far as the evidence shows, had no reason to suspect that there was any likelihood of injuring anyone by firing in the direction of the high house.
It is an elementary principle that negligence is gauged by the ability to anticipate danger. “[R]easonable foresight of harm is essential to the concept of negligence, and supplies the criterion for determining whether it exists in a particular case, and reasonablе foreseeability of harm is the fundamental basis of the law of negligence. . . . On the other hand, one is not bound to foresee every possible injury which might occur, or every possible eventuality, but only those which were
Nor may plaintiffs prevail in their contention that the trial court erred in refusing to instruct the jury on the doctrine of res ipsa loquitur. They rely on Jensen v. Minard, supra, 44 Cal.2d 325. There defendant fired a rifle at a sparrow in a strawberry patch and the bullet struck a child walking on the public road. No res ipsa loquitur instructions were requested in that case, but other instructions were given which erroneously forеclosed the jury from considering the mere happening of the accident itself as evidence of possible negligence. Unlike that case where ordinarily such injuries to the general public on a public road “do not occur if those using firearms use due care” (Jensen v. Minard, supra, p. 329), here it is at least arguable that the injury to Tommy resulted from his own negligent action or from the failure of the owners of the skeet range to provide a reasоnably safe working area for him. The applicability of the doctrine of res ipsa loquitur depends on whether it can be said, in the light of common experience, that the accident was more likely than not the result of defendant‘s negligence. “Where no such balance of probabilities in favor of negligence can be found, res ipsa loquitur does not apply.” (Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 442 [247 P.2d 344]; La Porte v. Houston, 33 Cal.2d 167, 169 [199 P.2d 665].)
Likewise the court did not err in refusing to give plaintiffs’ instruction on contributory negligence. It read: “You are instructed that plaintiff Tommy Tucker was not contributorily negligent and you must find against the defendant upon that issue.” Plaintiffs insist that under any view of the evidence Tommy could not have been negligent; but according to his own testimony, he moved forward to relоad the trap machine as soon as the bird had been released.
The subject of contributory negligence was properly covered in the instructions. The court defined contributory negligence (BAJI 103), set forth the various issues to be determined in relation to whether there was contributory negligence chargeable against Tommy (BAJI 113), and declared that a child is not held to the same standard of conduct as an adult (BAJI 147). It appeаrs that there was evidence from which the jury could have found that Tommy was guilty of contributory negligence: He had worked some three months on the skeet range and several times in the high house; he reasonably should have seen the peppered indentation marks on the high house and the metal plates around the opening from which the bird emerged; he had been warned of the danger that shot might come through the opening; he knew that he was not wearing any protective clothing or a face mask; and he was aware of the difficulty of shooting from station number 8. The jury could have inferred that Tommy had not stepped back on loading the machine but remained in direct line of the opening and so was hit, or that he had stepped back and thereafter stepped forward prematurely. Accordingly, whether Tommy was contributorily negligent was a question for submission to the jury rather than an issue for determination as a matter of law through the giving of plaintiffs’ requested instruction.
Nor did the court err in giving, at defendant‘s request, instructions on the question of assumption of risk. These were BAJI 207 to 207-E. They included the distinction between contributory negligence and assumption of risk (BAJI 207-C), the declaration that the person‘s “age, experience and capacity along with all the other surrounding circumstances as shown by the evidеnce” should be considered (BAJI 207-D), and the statement that the “plaintiff
Finally, there was no error in giving, at defendant‘s request, the following instruction: “You are instructed that it is the duty of an employer to furnish to his employees a safe place for them to work. You are further instructed that defendant, Philip Lombardo, if exercising ordinary care himself, was entitled to assume that plaintiff‘s еmployer had furnished to plaintiff a safe place within which to work and he could further assume that the plaintiff would reasonably use the protection afforded to him by the employer.” Plaintiffs argue that this instruction was improper in that it relates only to a duty owed by an employer to an employee as to safety regulations (
The judgment is affirmed.
Gibson, C. J., Shenk, J., Traynor, J., Schаuer, J., and McComb, J., concurred.
CARTER, J.—I dissent.
The trial court gave the following instruction at the request of defendant: “You are instructed that the duty owed by the defendant to the plaintiff in this case was to exercise ordinary care, that is the care that would be exercised by a reasonably prudent person in the same or similar circumstances. In this particular instance, however, the defendant was possessed of and using a firearm and a firеarm is capable of causing severe injury. For that reason the defendant was required to foresee the possibility of injury and, to avoid it, to exercise a degree of care commensurate with and in proportion to the danger involved, and, in the exercise of ordinary care, the quantum or amount of care exercised may be greater than would be necessary if he was not handling a loaded weapon. This is but another way of saying that the amount of care to be exercised by a reasonably prudent person will vary with the circumstances, and where the danger of injury is greater the amount of care to be used may be great.”
The court refused to give the following instruction requested by plaintiff: “You are instructed that if a person is injured by the discharge of a gun in the hands of another who has entire control of it, the burden is cast upon the latter to prove that the gun was not fired at the party injured either intentionally or negligently, but the result was inevitable and without the least fault upon the part of the one handling the gun.”
In my opinion the giving of the first instruction above quoted and the refusal to give the second instruction above quoted was prejudicial error which justifies a reversal of the judgment.
My views with respect to the legal problems involved in this case are expressed in my concurring opinion in Jensen v. Minard, 44 Cal.2d 325, at page 330 et seq. [287 P.2d 7], and for the reasons expressed therein I would reverse the judgment in the case at bar and grant plaintiff a new trial.