Adams v. Dunton
| Decision Date | 13 September 1933 |
| Parties | ADAMS v. DUNTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Municipal Court of Boston; T. H. Dowd, Associate Judge.
Action by Francis C. Adams against Kervin R. Dunton, with trustee process. Verdict for plaintiff for $3,000 in municipal court, and, from an order of the appellate division dismissing a report, defendant appeals.
Affirmed.
C. A. Barnes, of Boston, for appellant.
S. R. Jones and V. B. Kneeland, both of Boston, for appellee.
The plaintiff's declaration alleges that while on a duck hunting trip in Maine he was shot and injured by ‘the negligence and wilful, wanton, or reckless act’ of the defendant. A judge of the municipal court of the city of Boston found for the plaintiff on the ground that negligence of the defendant caused, and that negligence of the plaintiff did not contribute to, the plaintiff's injury. From an order of the appellate division dismissing a report the defendant has appealed.
At the time of the plaintiff's injury the plaintiff and the defendant were in a flat bottomed boat in a duck blind on a lake. The blind consisted of stakes loosely driven into the bottom of the lake, and a covering of boughs and brush by which the occupants were concealed from view. The boat which was about sixteen feet long was not anchored. It was tied to the blind in some way at the bow and stern but obviously not so securely fastened that movements of the occupants might not cause some movement of the boat. Just before the plaintiff's injury he had been seated in the bow of the boat and the defendant on a thwart about three or four feet behind the plaintiff; both were facing forward. Their guide sat in the stern.
The testimony taken in the aspect most favorable to the plaintiff does not support the defendant's contention that the evidence did not warrant the finding that the shot which injured the plaintiff came from the defendant's gun. Shortly after the boat entered the blind, ducks were flying in the vicinity and the guide told the plaintiff and the defendant that they could load their guns and they did. The plaintiff by mistake loaded his twelve gauge gun with a sixteen gauge shell with the result that it jammed in the breach and prevented the gun being fired. The plaintiff told his companions of his difficulty and told the defendant to go ahead and get ready to shoot. The defendant had started to rise from his seat and the plaintiff had arisen from his seat about three-quarters of an inch and was practically in a sitting position trying to push the shell out of the breach of his gun, when he was shot. The defendant was not called as a witness but the guide testified in a deposition that after the plaintiff's gun was jammed the defendant the plaintiff. He also testified that a loaded shotgun if it receives a jar is likely to explode whether the safety is on or off. His testimony with the fact that it did not appear that the guide had a gun or that there were any other guns but the plaintiff's and the defendant's in the boat or any other gunners in the vicinity, and with the evidence that the plaintiff's gun had jammed so that it could not be fired, that the defendant's gun when it was stood up in the blind had the safety button off instead of on, which according to other testimony would have prevented the trigger from going back, that the discharge came coincidently with movements of both plaintiff and defendant, that the shot entered the plaintiff's thigh from behind at a time when he was practically in a sitting position facting forward, and that the shot went downward and parallel with the leg bone, warranted the finding by inference that the shot came from the defendant's gun.
The precise manner in which the defendant stood up his gun or the exact way in which it came to be pointed, as it indubitably was pointed, at the plaintiff at the instant of its discharge, did not appear. The failure of the plaintiff to produce evidence either that the gun was left by the defendant so that it was aimed at the plaintiff or that it came to be so aimed in falling from its original position, does not leave the plaintiff without evidence that the conduct of the defendant was he cause of the plaintiff's injury. The defendant did not keep his gun in his actual manual possession but having it within his control he saw fit to leave it with the safety off, standing in the shaky blind at a time when he and the plaintiff were moving in the boat which was...
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Goldstein v. Gontarz
...varies with the circumstances, the care increasing with the likelihood and severity of the harm threatened, Adams v. Dunton, 284 Mass. 63, 66--67, 187 N.E. 90 (1933); Clough v. New England Tel. & Tel. Co., 342 Mass. 31, 35, 172 N.E.2d 113 (1961); Gelinas v. New England Power Co., 359 Mass. ......
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Felgner v. Anderson
...153 S.E. 797. 4 Webster v. Seavey, 83 N.H. 60, 138 A. 541, 53 A.L.R. 975. 5 Normand v. Normand (La.App.), 65 So.2d 914. 6 Adams v. Dunton, 284 Mass. 63, 187 N.E. 90. 7 Winans v. Randolph, 169 Pa. 606, 32 A. 8 Frederick v. City of Detroit, 370 Mich. 452, 121 N.W.2d 918 (June, 1963). ...
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...Ward, 251 Mass. 497, 502, 146 N.E. 709 (1925); Slowik v. Union St. Ry., 282 Mass. 249, 251-252, 184 N.E. 469 (1933); Adams v. Dunton, 284 Mass. 63, 67, 187 N.E. 90 (1933). See also Shultz v. Old Colony St. Ry., 193 Mass. 309, 322-323, 79 N.E. 873 (1907). The plaintiff correctly points out t......
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Ryba v. Lalancette, No. CIV.A. 03-40210-FDS.
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