Davison v. Flowers

Decision Date10 December 1930
Docket Number22284
PartiesDavison v. Flowers.
CourtOhio Supreme Court

Negligence - Parties engaged in hunting expedition - Failure to use ordinary cars in handling loaded gun - Injured party may recover, unless guilty of contributory negligence - Court to charge jury upon accidental discharge of gun, when - Special findings of fact by jury - Section 11463, General Code - Defendant entitled to finding upon particular negligent act when - Error to refuse request for finding upon ultimate and determinative fact.

1. Where a plaintiff and defendant are engaged in a hunting expedition under a situation where the circumstances developed on the trial tend to prove that the defendant failed to use the care that ordinarily prudent men would have used under the same or similar situations and circumstances in handling a loaded gun or in securing the safety device thereon, and such failure results in injury to the plaintiff the latter may recover if he himself is not guilty of contributory negligence; ordinary care in such circumstances is a question to he determined by the jury.

2. When negligence of defendant is pleaded and by him denied, it Is error to refuse to charge that a verdict should he returned for the defendant if the jury found that the discharge of defendant's gun was accidental and without fault on his part.

3. Where more than one specific act of negligence is pleaded and relied on, either of which if proven would sustain a recovery, under Section 11463, General code, the defendant is entitled to a request for a finding eliciting from the Jury of what particular act or acts of negligence they find the defendant guilty.

4. Two requests for finding upon particular questions of fact were made by the defendant. (1) Was the defendant negligent?-which the jury answered "Yes"- and (2) "If your answer to defendant's request No. 1 is yes, state of what that negligence consisted." In view of the fact that more than one specific act of negligence was pleaded and relied on, the court committed error in refusing to submit said second request. Such request and the answer thereto relate to a finding upon a particular question of fact which is of an ultimate and determinative and not of a probative character.

For convenience the parties will be alluded to as they stood in the trial court, wherein Zackie Flowers was plaintiff and Albert Davison defendant. Both parties were engaged in a hunting expedition, in the course of which the plaintiff was shot by the defendant in the leg, the injury resulting in the amputation of his foot above the ankle joint. In the trial court the cause was heard upon the issues joined by the petition, amended answer, and reply. The trial resulted in a verdict and judgment in favor of the plaintiff. That judgment was affirmed by the Court of Appeals, whereupon error was prosecuted to this court.

The petition alleged, in substance, that plaintiff and defendant were engaged in hunting rabbits, the latter having possession of a Parker 12-gauge hammerless shotgun; that while proceeding through a field the defendant, being approximately ten to fifteen feet from the plaintiff, turned in plaintiff's direction, and, without taking aim, so discharged his gun as to cause plaintiff's injury. The allegations of negligence substantially fall within two specifications: (1) The carelessness of the defendant, under the circumstances alleged, in carrying and handling the gun pointed in plaintiff's direction with the safety off. (2) Carelessness in the same situation in causing and permitting the gun's discharge, when, in the exercise of ordinary care, he should have known that it would injure the plaintiff. The amended answer denied the allegations of negligence, averring the fact to be that defendant did use ordinary care, but that in some manner unknown to him the shotgun was accidentally discharged. A second defense was that of contributory negligence, wherein the defendant alleged that plaintiff walked from behind the defendant to a position in front of the gun without giving warning of his change of position. The reply denied that the discharge of the gun was accidental, and controverted the allegations of contributory negligence.

The defendant asked the court to give the following request to the jury before argument: "If you find that the discharge of the gun in the hands of the defendant was accidental and without fault of the defendant, then your verdict should be for the defendant." The court refused to give that request, to which refusal the defendant excepted. The defendant also asked the court to submit the two following special interrogatories to the jury, the first of which was given and the second refused: (1) "Was Albert Davison, the defendant, negligent?" (2) "If your answer to defendant's request No. 1 is yes, state of what that negligence consisted." The jury answered interrogatory No. 1 in the affirmative, "Yes." The trial court refusing to submit interrogatory No. 2, the defendant excepted to such refusal.

Mr. J J. McCall and Mr. Oscar M. Abt, for plaintiff in error.

Mr. A C. L. Barthelmeh and Mr. A. L. Hetting, for defendant in error.

JONES, J.

One of the chief contentions of counsel for defendant is that, since there was no proof of negligence in the discharge of the gun by defendant, the verdict of the jury can be sustained only by the application of the doctrine res ipsa loquitur, i.e that mere proof of the injury raised a presumption of negligence which required explanation on the part of the defendant.

In the instant case we are not concerned with the application of that rule for two reasons: The court confined its charge to the issues of negligence and contributory negligence made by the pleadings and proof. Nowhere in its charge did the court allude to the doctrine referred to, nor did he require the defendant to assume the burden of explaining how the accident occurred. The court fully stated the issues to the jury and placed the burden of proving negligence upon the plaintiff. In its charge the court said: "Was defendant negligent in one or more of the particulars set forth in the petition and if so negligent, was defendant's negligence the proximate cause of injury and damage to plaintiff? Plaintiff has the burden of proving these issues by a...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT