Edgar v. Brandvold

• Decision Date: 05 November 1973
• Docket Number: No. 1769--I,1769--I
• Citation: 515 P.2d 991,9 Wn.App. 899
• Parties: Jerry A. EDGAR and Janice Edgar, his wife, Appellants, v. Duane BRANDVOLD et al., Respondents.
• Court: Washington Court of Appeals

Page 899

9 Wn.App. 899

515 P.2d 991

Jerry A. EDGAR and Janice Edgar, his wife, Appellants, v. Duane BRANDVOLD et al., Respondents.

No. 1769--I.

Court of Appeals of Washington, Division 1.

Nov. 5, 1973.

As Changed Nov. 19, 1973.

Review Denied Feb. 4, 1974.

Keller, Rohrback, Waldo, Moren & Hiscock, Kenneth L. Cornell, David F. Hiscock, Seattle, for appellants.

Julin, Fosso & Sage, H. C. Fosso, Seattle, for Brandvold.

Skeel, McKelvy, Henke, Evenson & Betts, John C. Patterson, Seattle, for Peterson.

CALLOW, Judge.

Four friends were quail hunting near Brewster, Washington, on November 30, 1968. One of them hunted by himself while the others continued together. They hunted through the morning and decided to return to the truck of the defendant, John Peterson. They turned and proceeded side by side across a field toward the truck with Peterson on the left, the defendant Brandvold in the center and the plaintiff Edgar on the right. On the way back to the truck, the plaintiff fell behind the defendants to watch his dog. The two defendants continued on and as they approached the highway, a covey of quail emerged from the bush, flew past the defendants and towards the area from whence the hunters had come. Both defendants turned and each fired two or three shots from their .12 gauge shotguns. The plaintiff, standing from 115 to 125 feet away facing the road, was struck by four pellets, one of which blinded his left eye.

The jury returned a verdict in favor of both defendants. The plaintiff claims that the court erred in failing to give his proposed instruction which read:

Any person having possession and control of a firearm must exercise the highest degree of care. The utmost caution must be used to the end that harm may not come to others. The degree of care must be commensurate with the dangerous character of the weapon.

The plaintiff further challenges the exclusion of the testimony of his expert witness concerning the standard of care required in the use and handling of a firearm. Our discussion is restricted to the issues as raised by the plaintiff.

The proposed instruction properly was refused. The degree of care required of both the defendants and the plaintiff was the care a reasonably prudent person would exercise under the circumstances and commensurate with the risks involved. The degree of care required in any situation is the care needed to avoid the danger presented. Though the hazards of each predicament in life differ, the responsibility remains to meet the hazards, whatever they may be, as a prudent person would meet them. The inquiry that must be answered in every case is whether the party acted with caution equal to the peril. Thus it is for the jury, as reasonable people, to decide whether the actor proceeded with due regard and caution whether he was helping a blind person across the street, handling dynamite or shooting a gun. Gibson v. Payne, 79 Or. 101, 154 P. 422 (1916); Koontz v. Whitney, 109 W.Va. 114, 153 S.E. 797 (1930). It is misleading to instruct a jury that they must require of a party a high, a very high, or an extraordinary degree of care or that a party must have exercised the utmost or extreme caution because of the presence of some recognized dangerous instrumentality in a particular situation. Ulve v. Raymond, 51 Wash.2d 241, 317 P.2d 908 (1957); Hubbard v. Embassy Theatre Corp., 196 Wash. 155, 82 P.2d 153 (1938).

The presence of a dangerous instrumentality in any exigency requires that adequate heed and regard be given to such a circumstance. The attention given to that circumstance must meet the standard prudent people would exact of themselves and others. To say that another is to act only with the highest degree of care and extreme caution engenders an element of concern whether one may proceed at all in the face of certain dangers. This impedes instead of assisting evaluation of the acts of a party as negligent or careful and should not be injected into jury deliberations. Anderson v. Beagle, 71 Wash.2d 641, 430 P.2d 539 (1967); Ewer v. Johnson, 44 Wash.2d 746, 270 P.2d 813 (1954); State v. Green, 38 Wash.2d 240, 229 P.2d 318, 23 A.L.R.2d 1397 (1951); State v. Hedges, 8 Wash.2d 652, 113 P.2d 530 (1941); Hinkel v. Weyerhaeuser Co., 6 Wash.App. 548, 494 P.2d 1008 (1972); Tex Brotherton, Inc. v. Lammers, 4 Wash.App. 886, 484 P.2d 934 (1971); W. Prosser, Torts § 34 (4th ed. 1971); 2 F. Harper and F. James, The Law of Torts § 16.13 (1956); Annot., 26 A.L.R3d 561 (1969). ¹

Civil liability for the unintentional shooting of another person is imposed upon a hunter if he has not exercised the care required by the circumstances. Annot., 26 A.L.R.3d 561 (1969). In Bezemek v. Crystal, 27 Mich.App. 36, 183 N.W.2d 414 (1971), the court stated 183 N.W.2d at page 416 Plaintiff first contends that the trial court should have given an instruction on the 'high degree of care' required of a man carrying a dangerous weapon. The plaintiff requested and the trial court refused to give the following instruction:

'A higher degree of care is required in dealing with a dangerous instrumentality such as a rifle, than in ordinary affairs of business, which involve little or no risk.'

Plaintiff's proposition regarding 'degrees of care' is not the law in this state. In Felgner v. Anderson (1965), 375 Mich. 23, 30, 133 N.W.2d 136, 140, the Supreme Court stated:

(We quote only in pertinent part) '. . . The measure of duty of a negligence-charged defendant is, . . . 'reasonable care Appropriate to the circumstances of the case, a standard of negligence which allows the fact finder to determine that some factual circumstances reasonably require greater or lesser diligence than do other circumstances in order to constitute reasonable or due care.' . . . when a jury of laymen is charged on the common law of negligence, the charge * * * impose(s) a standard measured by that which a reasonably prudent man would regard as reasonably required by the specific factual circumstances of the case.'

Therefore, although more diligence is certainly required when dealing with a dangerous weapon than in the ordinary affairs of business, the degree of care required is precisely the same, I.e. that of a reasonable, prudent man under the same circumstances. The trial court was, therefore, correct in refusing to give the requested instruction.

The plaintiff contends that Olson v. Gill Home Inv. Co., 58 Wash. 151, 108 P. 140, 27 L.R.A.,N.S., 884 (1910) and Smith v. Nealey, 162 Wash. 160, 298 P. 345 (1931) are inconsistent with the principles discussed and require the giving of the proposed instruction. Those opinions address themselves to the theory imposing liability for negligently using, possessing or controlling dangerous instrumentalities in relation to children. The quote in the Olson case that is misleading when taken out of context stated in part 58 Wash. at page 156, 108 P. at page 142:

'The degree of care required of persons having the possession and control of dangerous explosives, such as firearms or dynamite, is of the highest. The utmost caution must be used in their care and custody, to the end that harm may not come to others from coming in contact with them. The degree of care must be commensurate with the dangerous character of the article . . . and is greater and more exacting as respects young children. As to such, the care required to be exercised is measured by the maturity and capacity of the child. . . . What would constitute reasonable care with respect to adults might be...