Bahel v. Manning

• Decision Date: 10 March 1897
• Citation: 70 N.W. 327,112 Mich. 24
• Court: Michigan Supreme Court
• Parties: BAHEL v. MANNING.

70 N.W. 327

112 Mich. 24

BAHEL v. MANNING.

Supreme Court of Michigan

March 10, 1897

Error to circuit court, Saginaw county; Eugene Wilber, Judge.

Action by Charles W. Bahel against Peter J. Manning. Judgment for plaintiff. Defendant brings error. Affirmed.

F. E. Emerick (J. H. Davitt, of counsel), for appellant.

Humphrey & Grant, for appellee.

LONG C.J.

This is an action on the case for damages for injuries caused by the defendant's carelessly and negligently discharging a gun, the bullet from which passed through plaintiff's right thigh and hip permanently disabling him. It appears that the defendant at the time of the accident was a resident of Saginaw, this state, and had gone to Otsego Lake on a hunting trip. He had formerly lived at that village for some years, and he and the plaintiff were well acquainted. On the evening of November 13, 1894, the plaintiff, learning that the defendant was at the hotel in the village, called to visit him. As the plaintiff entered the public room of the hotel, he found the defendant seated in front of a washing stand on the east side of the room, fixing his gun. He had taken the stock off and the works out, and was fixing the spring, the barrel of the gun lying across his lap. The plaintiff became seated near the defendant, when some conversation was had between them in reference to the gun. During the day the defendant had loaded the gun,-that is, had put a number of loaded cartridges into the magazine,-but had had trouble with discharging some of them. The gun had twice failed to explode the cartridges during the day, and he took it back to the hotel with the cartridges in the magazine. He testifies that, before he commenced working on the gun to take it apart, he worked the lever which extracts the cartridges from the gun until it failed to throw out any more cartridges, and then took the gun apart, and it was in that condition when the plaintiff came in. The parties differ as to the position of the gun and the position occupied by each after the plaintiff came into the room. The plaintiff testified that after he had spoken to the defendant he "asked him about the gun, and what was the matter with it, and defendant said the spring was not stiff enough; that it wouldn't set the cartridges off,-meaning the fire. I said, 'Perhaps, if you put a piece of leather under the spring, it will make it so it will stand during the hunting season.' He finally took it apart and put the piece of leather under the spring and put the spring, with the rest of the works, back into the gun, turned it up, like that (indicating), and drew the gun up like that (indicating), and discharged it. *** The gun was pointed so that when it went off it hit me in the leg." He further testified that the gun was on the defendant's knees, and that he put the works in, and "then it was ready to see if the spring was any stiffer. He just turned it and drew it onto me." On cross-examination he testified that the gun was not pointed at him until the spring was fixed and defendant brought it up to try it. He was asked "Did you say anything about trying it? A. Yes, sir. After he put the leather under the spring, then I told him to try it,-see if we could get it any better. Q. There was only one way for him to try it? A. He could try it by raising the hammer and not letting it snap down. Q. Didn't he do that,-raise it with his thumb? A. No; he raised the hammer and snapped it, and drew it onto me. I didn't tell him to draw it onto me. I leaned back in my chair. I saw him do this. In order to get away, I had to get forward. It happened so quick I didn't have time to take a second's thought. *** Q. When you said to him to try it, of course the only thorough way to try that would be to cock the gun, and let it pull the trigger, and let it strike down? A. But he needn't point it at anybody. *** Q. Did you think the gun was loaded? A. No, sir, I didn't; but I ain't in the habit of pointing a gun at anybody, or having it pointed at me, whether it was loaded or not." The witness further testified that during all the time he was in the room, and up to the time when the gun was snapped off, he was not in range with the muzzle.

The defendant's statement of the affair is that he had been in the woods, and had shot at a deer or two that day, and that the gun had failed to go off; that that evening he was trying to tighten the mainspring; that, when the plaintiff came in, defendant showed him the cartridge which the gun had refused to break, and had only dented the top of it a little; that after fixing the spring he was working the hammer, when the plaintiff said, "Snap it off; it won't hurt it"; that he did snap it off, when it went off, and the plaintiff was injured. He testified further that the gun was in the same condition from the time he started to work at it until it was discharged; that he believed it was entirely unloaded, and there was nothing that occurred there that night to indicate that there was anything wrong with the magazine of the gun; the lever operated as it usually did when emptying the gun and magazine of the cartridges; that he has no recollection of any change in the plaintiff's position or of his own after the plaintiff sat down there; that the gun pointed in his direction all the time from the time he sat down until it was discharged; that he did not pick it up, raise the hammer and bring it around towards the plaintiff, and then pull it off. The defendant further testified that he supposed he had all the cartridges out of the gun and out of the magazine; that his attention was called to this before the plaintiff came in by a Mr. Callahan, who asked, "Is there anything in that gun?" and defendant told him there was not, and that he said to him, "Do you suppose I would go to work to fix a gun with any loads or cartridges in it. I pumped the lever to show him there was not, probably five or six times"; that this was the usual way of throwing the cartridges. It was shown, however, by the testimony of other witnesses, that, after the cartridge was carried from the magazine to the barrel by working the lever after the works had been put back into the gun, the cartridge would come in plain view of the one working the lever.

The defendant presented several requests to charge to the court, relating to the question of defendant's negligence. These the court refused, but charged the jury upon that question as follows: "It seems from some cause,-the witnesses are not able to explain just how,-one cartridge was not removed, and the result was this accident. The pointing of the gun, under such circumstances, at another, is made an unlawful act by the statutes of this state. The fact that the defendant had used the precautions which he has enumerated, for the purpose of determining whether the gun was or was not loaded, will not relieve him from liability from the consequence of his negligent act in pointing the gun at the plaintiff, raising the hammer, and pulling the trigger, which were the immediate acts which caused a discharge of the gun and resulted in injury to the plaintiff. A man is not excused from his act in injuring another by pointing and discharging a gun at him from the fact that he supposed he had taken all necessary precautions prior to the doing of this for the purpose of ascertaining and determining that the gun was not loaded. The act of pointing a gun at another, cocking it, and pulling the trigger, is of itself a negligent act; and the person so doing, if the gun chances to be loaded and is discharged, and injures another, is not excused from the consequences of this negligent act on account of the care which he took prior to its commission to determine whether the gun was loaded. I therefore charge you, gentlemen of the jury, that, under the undisputed evidence in this case, the act of the defendant in pointing the gun at the plaintiff, raising the hammer, and pulling the trigger, which caused the gun to be discharged and to injure the plaintiff, was a negligent act on the part of the defendant, and rendered him liable to the plaintiff in this action, and your verdict must be in his favor, unless you find that the plaintiff himself was guilty of contributory negligence. The plaintiff, in order to recover, must establish, by a preponderance of evidence, two facts: First, that the injury was caused by the negligence of the defendant; second, that he himself was not guilty of contributory negligence. And the burden of proof is upon the plaintiff to establish both of these propositions. I have already instructed you that, as a matter of law, the plaintiff has established the first proposition,-that the defendant, in so pointing the gun and discharging it, was guilty of negligence."

The sections of the statute referred to by the court in its charge to the jury are 9110-9113, inclusive, of Howell's Annotated Statutes. The act was passed in 1869, and is entitled "An...