Tucker v. Lombardo , 47 Cal. 2d 457 ( 1956 )

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 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.”

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.