Purtle v. Shelton , 251 Ark. 519 ( 1971 )

George Rose Smith, Justice.

This is an action for personal injuries suffered by Jerry Purtle, a sixteen-year-old minor, in a hunting accident during the 1969 deer hunting season. The defendants are Kenneth Shelton and his son, Kenneth, Jr., who was seventeen at the time of the accident. The jury attributed half the negligence to Jerry Purtle and half to young Shelton, so there was no recovery. For reversal the appellant, Jerry’s father and next friend, contends that the trial court erred in its instructions defining the standard of care to be observed by a minor while hunting deer with a high-powered rifle.

There were some conflicts in the testimony, but the salient facts are not really in dispute. Jerry and young Kenneth had spent the night at the home of L. D. McMullen, who owned a deer camp in Union county. Early the next morning, before daylight, McMullen took the two youths (and a third lad not involved in the case) to the area where they were to hunt. Kenneth’s deer stand was next to the road, but Jerry had to walk a short distance through the woods to his stand. McMullen had cautioned both boys to make their presence known when they were walking in the woods and not to shoot at anything without knowing it to be a deer.

Jerry failed to find his stand immediately and actually walked toward Kenneth’s stand, without making his presence known. Kenneth thought he saw a deer and fired at it with his 30.06 rifle. The soft projectile apparently hit a tree, broke into shrapnel, and ricocheted toward Jerry, causing serious injuries to both his eyes.

The trial court submitted the case to the jury upon the theory that Kenneth was required to use that degree of care which a 17-year-old minor would use in the same circumstances. Specifically, the court gave AMI 301, defining negligence by reference to a reasonably careful person, AMI 304, defining reasonable care with respect to a minor as that degree of care which a reasonably careful minor of his age and intelligence would use in similar circumstances, AMI 305 (B), putting the duty on both persons to use reasonable care, and AMI 602 explaining the right of one person to assume that another person will use reasonable care.

The appellant first contends that the court should have instructed the jury that Kenneth, in using a high-powered rifle, was required to use the same degree of care that would be observed by an adult in like circumstances. In making that argument counsel cite our holding in Harrelson v. Whitehead, 236 Ark. 325, 365 S. W. 2d 868 (1963), where we adopted the general rule that a minor operating a motor vehicle must use the same degree of care as an adult would use. The appellant argues that motor vehicles and rifles are both dangerous and should therefore be treated alike as far as their use by a minor is concerned.

We cannot accept that argument. To begin with, the motor vehicle rule was not adopted, as our opinion in Harrelson reflects, solely because the driving of an automobile entails danger to others. There are other factors to be considered. A minor must be at least sixteen to operate a car by himself. Ark. Stat. Ann. § 75-309 (Supp. 1969). He must pass an examination to demonstrate his ability to operate the vehicle on the highways. Section 75-318. The rules governing the operation of motor vehicles are largely statutory and make no distinction, express or implied, between the degree of care to be exercised by a minor and that to be exercised by an adult. A measure of financial responsibility is required. Section 75-309. In view of all those factors, the cases in other jurisdictions, as we pointed out in Harrelson, have consistently held minors to the same degree of care as adults in driving upon the highways.

In the second place, we considered the subject anew in Jackson v. McCuiston, 247 Ark. 862, 448 S. W. 2d 33 (1969). There a farm boy almost fourteen years old was operating a tractor-propelled stalk cutter — a large piece of machinery having a dangerous cutting blade. In holding that minor to an adult standard of care we quoted from three authorities: The Restatement of Torts (2d), Prosser on Torts, and Harper & James on Torts. All three authorities recognize the identical rule, that if a minor is to be held to an adult standard of care he must be engaging in an activity that is (a) dangerous to others and (b) normally engaged in only by adults. In the course of that opinion we stated that the minor "was performing a job normally expected to be done by adults.”

We are unable to find any authority holding that a minor should be held to an adult standard of care merely because he engages in a dangerous activity. There is always the parallel requirement that the activity be one that is normally engaged in only by adults. So formulated, the rule is logical and sound, for when a youth is old enough to engage in adult activity there are strong policy reasons for holding him to an adult standard of care. In that situation there should be no magic in the attainment of the twenty-first birthday.

We have no doubt that deer hunting is a dangerous sport. We cannot say, however, either on the basis of the record before us or on the basis of common knowledge, that deer hunting is an activity normally engaged in by adults only. To the contrary, all the indications are the other way. A child may lawfully hunt without a hunting license at any age under sixteen. Arkansas Game & Fish Commission’s 1971-1972 Hunting Regulations, p. 4. We know, from common knowledge, that youngsters only six or eight years old frequently use .22 caliber rifles and other lethal firearms to hunt rabbits, birds, and other small game. We cannot conscientiously declare, without proof and on the basis of mere judicial notice, that only adults normally go deer hunting.

In refusing to apply an adult standard of care to a minor engaged in hunting deer, we do not imply that a statute to that effect would be unwise. Indeed, we express no opinion upon that question. As judges, we cannot lay down a rule with the precision and inflexibility of a statute drafted by the legislature. If we should declare that a minor hunting deer with a high-powered rifle must in all instances be held to an adult standard of care, we must be prepared to explain why the same rule should not apply to a minor hunting deer with a shotgun, to a minor hunting rabbits with a high-powered rifle, to a twelve-year-old shooting crows with a .22, and so on down to the six-year-old shooting at tin cans with an air rifle. Not to mention other dangerous activities, such as the swinging of a baseball bat, the explosion of firecrackers, or the operation of an electric train. All we mean to say in this case is that we are unwilling to lay down a brand-new rule of law, without precedent and without any logical or practical means of even surmising where the stopping point of the new rule might ultimately be reached.

In the other two points for reversal the appellant argues that the trial court should have instructed the jury not in terms of reasonable care (AMI 301, 304, 305 [B], and 602) but in terms of a high degree of care commensurate with the dangers involved in the use of a high-powered rifle. Counsel cite Manning v. Jones, 95 Ark. 359, 129 S. W. 791 (1910), a hunting accident case, but we do not read that opinion as requiring the trial judge to submit to the jury some standard of care exceeding that of reasonableness. In fact, we there said: “Here, as in other cases, the test of the liability of the defendant is whether, in what he did, he failed to exercise reasonable or ordinary care.” We think the correct rule of law to have been stated in the Comment to AMI 1301: “The Committee believes that the Bennett case is well reasoned and follows a rule which eliminates the exercise in semantics that results when the circumstances are judicially viewed as converting ordinary care to ‘a higher degree of care.’ Logically the duty enunciated in an instruction should be ordinary care under the circumstances, and the contention that the circumstances dictate a high degree of caution should be left to arguments of counsel.”

Affirmed.

Brown, J., concurs. Harris, C. J., and Fogleman and Byrd, JJ., dissent.