Dickens v. Barnham

• Decision Date: 08 November 1920
• Docket Number: 9898.
• Citation: 194 P. 356,69 Colo. 349
• Parties: DICKENS et al. v. BARNHAM.
• Court: Colorado Supreme Court

194 P. 356

69 Colo. 349

DICKENS et al. v. BARNHAM.

No. 9898.

Supreme Court of Colorado

November 8, 1920

Rehearing Denied Jan. 10. 1921.

Department 3.

Error to District Court, Boulder County; George H. Bradfield Judge.

Action by Henry E. Barnham against William A. Dickens, Lloyd Dickens, and another. Judgment for plaintiff against the two named defendants, and they bring error.

Affirmed.

Jacob S. Schey and John F. Reynes, both of Longmont, for plaintiffs in error.

Rinn & Archibald, of Boulder, for defendant in error.

ALLEN J.

This is an action to recover damages for personal injuries resulting from the alleged negligence of the defendants Lloyd Dickens a minor, and William A. Dickens and Hannah Dickens, the parents of Lloyd Dickens. The plaintiff below recovered a judgment against two of the defendants, the father and the son, and such defendants have sued out this writ of error and apply for a supersedeas.

The plaintiff, Henry E. Barnham, was injured by a flying bullet alleged to have been discharged from a rifle fired by the defendant Lloyd Dickens, who was at that time an infant of the age of eight years. The bullet struck the plaintiff about an inch in front of the right ear and passed through brain tissue and through the eyeball. It is not disputed that, upon the occasion of the plaintiff's injury, Lloyd Dickens was carelessly and negligently firing an automatic repeating rifle, and that as a consequence of such conduct the plaintiff was struck and injured by a stray bullet. There is ample evidence to support the verdict as against the defendant Lloyd Dickens, and any question as to the sufficiency of such evidence, to sustain a judgment against him, does not merit discussion.

The main question to be determined is: Does the evidence support the verdict and judgment against the defendant William A Dickens, the father of Lloyd Dickens?

The judgment against the father is sought to be upheld on the theory that the evidence shows that he was guilty of negligence in connection with the circumstance that the son obtained possession of the rifle, and ammunition therefor, and used the same with the result already noted, and that such negligence was the cause of the injury. As evidence tending to show such negligence, there was testimony to the following effect:

At all times herein mentioned, William A. Dickens and his family resided in a dwelling located a quarter of a mile distant from the city limits of Longmont, in Boulder county, and about a hundred yards from an extensively traveled public highway. The family consisted of a wife and five children, the latter being aged, respectively, about 14, 10, 8, 7, and 6 years. On the afternoon of May 11, 1919, Lloyd, aged 8, was left alone on the premises, as he had been at other times. It was on that occasion that the plaintiff was struck by a stray bullet, while he was walking on the highway above mentioned, and, as hereinbefore noted, the bullet came from a rifle fired by Lloyd.

The rifle in question was one purchased by William Dickens, Jr., another son, aged 14. It was purchased with the father's consent, about one or two months prior to the date of the accident. Some time after it was brought home, William, Jr., showed Lloyd how to load and discharge the rifle, and allowed him to fire it once. Prior to, and at, the time that the rifle was purchased the father and his son William kept upon their premises at their home another rifle which, on at least one occasion, was used by Lloyd. It was kept in a barn, was not concealed from Lloyd, and he knew it was there. For a time after its purchase, the new rifle was also kept in the barn. Then the father instructed William 'to take it some place else' because, as Lloyd testified, 'it was too good a gun to leave laying around in the barn.' The following is the testimony of the father as to why the new rifle was not kept in the dwelling house:

'Well, William got the gun and put it in the barn. I seen the gun there, and I says 'It is too dirty to keep a good gun there.' I says, 'Put it in a better place,' and he did, or at least the gun was removed, and I presume he took it away.'

The father intrusted the care of the new rifle entirely to his son William. The new rifle was placed in a bunkhouse. Lloyd testified that he saw William 'take it in there.' He knew it was being kept there. The bunkhouse was not locked. Lloyd and the other children sometimes played in it. When Lloyd was left alone at home on the afternoon...