Tuminello v. Davida

Pee Cueiam.

On Sunday, July 3d, 1927, the infant plaintiff, a girl twelve years of age was visiting at 119 Chestnut Place, Roselle Park. There were a number of others present, including the defendant and one Joe Barino. The defendant was discharging a small pistol using .22 calibre blank cartridges.

As _ the pistol was discharged the defendant caused the empty shells extracted to drop to and remain upon the pavement where the .party was assembled. At the same time Barino, a member of the party, had some sort of a bomb or torpedo which he was throwing to the pavement and discharging. The plaintiff was injured by an empty shell, such as defendant was using, lodging in her eye, necessitating the removal of her eye. Suit was brought against the defendant, Davida, a trial of which resulted in a verdict in his favor. This we are asked to set aside upon the ground that it is against the weight of the evidence.

It is not only difficult but impossible for us to see how in the discharging of the pistol, by the defendant, the empty shell would or could be propelled through the barrel of that weapon so as to cause the injury in question. It is more likely that, from some cause, one of the empty shells upon the pavement, perhaps by the explosion of the torpedoes, was forced from its position and into the eye of the plaintiff.

A most careful examination and consideration of the proofs leads us to the conclusion that we are not warranted in disturbing the verdict.

The rule will therefore be discharged.