Baxter v. Krainik ( 1905 )

Cassoday, O. J.

1. It is claimed that tbe third, fourth, and fifth findings of tbe jury, to tbe effect that tbe revolver was fired intentionally and negligently by the defendant and that such negligence was the proximate cause of tbe plaintiff’s injury, are not sustained by tbe evidence, and hence that tbe court erroneously refused to direct a verdict in favor of tbe defendant or to set aside the verdict and grant a new trial. There is testimony on tbe part of tbe defendant tending to prove that the defendant never owned a revolver and never carried or shot a firearm before; that tbe revolver in question was a self-acting, 32-caliber revolver and belonged to bis nephew, wbo some weeks before bad left it at a gunsmith’s for repair, where it remained until the day in question, when, at the request of his nephew, he got it and left it at a hardware store to be supplied with cartridges that would fit the same; that the defendant took the revolver from the store, not knowing that there was any load in it, and placed it in an empty grain sack in his wagon and shortly after started for home; that when near the place of the accident he stooped over and attempted to get the revolver out of the bag, and while raising up it accidentally went off. On the part of the plaintiff there was evidence tending to prove that the shot was fired when the plaintiff’s team was close to the road fence, and that the defendant and his team were in the road right opposite, and that, soon after, the defendant admitted that he shot the revolver off into the ground to see how it worked, for fun. "Whether a person who fires off a revolver intentionally or negligently is liable for the consequences depends upon the circumstances under which the shot is fired. Thus it is said by a standard text-writer, that, if the shooting “be done by soldiers in a camp where such shooting is customary, then there is no liability if a person passing in the neighborhood is non-negligently hit. . . . But a person who shoots at a thoroughfare, without notice to travelers, he not being required by official duty to shoot, is liable for the consequences arising if a person passing on the thoroughfare is hit.” "Wharton, Negligence (2d ed.) § 110. See, also, § 882. Under the evidence in the record it was a question of fact for the jury as to whether the revolver was intentionally or negligently fired off.

2. It is claimed that the special verdict did not cover all the issuable facts in the case, and that other questions requested should have been submitted. Among such requests were questions as to whether the defendant had reason to apprehend or expect that the revolver was loaded; as to whether he had reason to expect or apprehend that the discharge of a revolver at the time and place described would be likely to scare a team of horses attached to and operating a self-binder in an adjoining field; as to whether a man of ordinary intelligence and prudence ought to have reasonably expected that the discharge of the revolver would scare the team. It has often been said by this court that the form of the verdict is very much in the discretion of the trial court. Some of the questions so suggested were evidentiary in their character, and hence have been repeatedly condemned by this court; and all were covered by the questions which, under the charge of the court, were submitted to the jury.

3. Error is assigned for the improper admission and rejection of testimony as to whether the defendant intentionally •or accidentally discharged the revolver. It was a vital question in the case. ■ The plaintiff relied upon admissions made by the defendant in the English language. The defendant •claims that he could not speak or understand the English language. Two witnesses testified to the effect that, immediately after the shooting, they went to the wagon where the defendant was, and asked him what he shot for, but could not make him understand; that he spoke in his own language, which they could not understand; that the little girl who was in the wagon with him said he shot for fun; and the court refused to strike it out. Two or three days after that, one of those witnesses and his wife testified to the effect that they went to the house of the defendant and inquired about some insurance, in the first place; that they did not want to let the defendant know what they came there for; that they went, there to identify the man for the plaintiff; that, in answer to their questions, the defendant told them in the ‘English language that he shot off the gun into the ground for fun, to see how it worked. On cross-examination of the wife the court excluded testimony as to what her husband said in that conversation about insurance, whether the defendant conversed freely in English about insurance, and as to the length of the conversation on insurance. Some of such rulings were made after counsel for tbe plaintiff bad stated tbat be made no objection to sucb questions because tbe defendant claimed tbat be could not understand tbe English language. Sucb rulings-were not only erroneous but very prejudicial to tbe defendant..

4. Error is assigned for improper remarks of plaintiff’s counsel in bis closing argument to tbe jury., He was allowed, against objection, to read as testimony of tbe defendant what was in fact testimony of one of tbe plaintiff’s witnesses. So-counsel for tbe plaintiff was allowed, against objection, to state to tbe jury specific acts of a young boy who bad pleaded guilty of an accident which happened in tbe woods a few months before, and then said:

“Tbat young boy is over in jail paying tbe penalty of bis-carelessness, while counsel stands up before you and says nobody has ever read of sucb an accident of this kind, and objects to my calling your attention to tbe fact tbat we have an instance of it right here, this term of court. It is just sucb carelessness of this kind tbat ought to be brought to account. It is careless and negligent use of firearms tbat people should be held to account for. They are dangerous under any circumstances.”

True, there was no exception to tbe remarks last quoted. But tbe objection and exception taken related to tbe same-matter, and tbe defendant’s counsel was excusable for not repeating sucb objection and exception. Sucb remarks were irrelevant and necessarily damaging after having been thus-approved by tbe court.

By the Gowrt. — The judgment of tbe circuit court is reversed, and tbe cause is remanded for a new trial.