Gibson v. Payne
| Decision Date | 18 January 1916 |
| Citation | 154 P. 422,79 Or. 101 |
| Parties | GIBSON v. PAYNE. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Yamhill County; Webster Holmes, Judge.
Action by John H. Gibson against C.J. Payne. From a judgment for defendant, plaintiff appeals. Affirmed.
M. W. Seitz, of Portland (Seitz & Clark, of Portland and R. L. Conner, of McMinnville, on the brief), for appellant. W. T. Vinton and James E. Burdett both of McMinnville (McCain, Vinton & Burdett, of McMinnville, on the brief), for respondent.
It appears from the record that on the day of the accident complained of plaintiff and a party of friends went to defendant's farm and requested the privilege of hunting birds thereon, which was granted. At their solicitation the defendant accompanied them for the purpose of showing them the hunting grounds, but not to engage in the sport himself. After one division of the party, consisting of plaintiff defendant, and two others, had searched in one field, they proceeded for a short distance along a county road and were entering an inclosure on the other side, Mr. Gibson having advanced into the field about 15 or 20 feet ahead of the others. At this time Mr. Dobie, one of the party, having had poor luck, urged Mr. Payne to take his gun and shoot some game. Finally, the latter consented, and Dobie passed him a double-barreled breech-loading gun with visible hammers, loaded and fully cocked. Payne, noticing that one of the hammers was raised, proceeded to lower it, when the other barrel was discharged, hitting Gibson in the hip and leg and injuring him severely. Payne exclaimed to Dobie: "What in the devil did you hand me a cocked gun for?"
The charge of negligence is as follows:
"That the discharging of said gun and the injuries to the plaintiff as herein stated were caused wholly by the carelessness and negligence of the defendant, in this, that the defendant was careless and negligent in cocking said gun and permitting the hammer thereof to remain cocked and in holding said gun in such a manner and position that the plaintiff became injured when said gun was discharged; and that the defendant was further careless and negligent in carelessly and negligently discharging said gun and in holding the same in such manner and position that the same was discharged."
The defendant denies this charge, and pleads contributory negligence on the part of the plaintiff in advancing in front of the other members of the party, and in knowingly permitting Dobie to carry a loaded shotgun with both hammers up; and that the accident was an unavoidable one.
In order to show the condition of the gun when handed to defendant, and also as tending to show plaintiff's opportunity for knowing the same, defendant introduced evidence of the position of the hammers when Dobie was carrying the gun along the county road. After the questions eliciting this testimony were answered, defendant interposed an objection, but made no motion to strike out the answer. By the complaint Payne was charged with carelessly cocking the gun, and, to refute this, it was competent for him to prove the condition of the weapon immediately before it was passed to him. Payne asserts that he did not know that the hammers were raised when he received the weapon; that upon discovering that one barrel was cocked he at once took the precaution to lower the hammer in order to lessen the danger. Plaintiff did not undertake to show in what manner the gun was discharged, whether by a jar in handling, or in some other manner. Plaintiff states that if he had been aware that the gun was being carried while cocked he would have left the hunting party very quickly. The jury failed to find that the injury was caused by defendant's negligence without a contributory fault of the part of plaintiff.
When the facts are such that reasonable men may differ as to whether there was negligence, the determination of the matter is for the jury. Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485. We think this case is one for the special consideration of the jury, and that it was decided by them upon the facts, a portion of which have been referred to, without any misdirection on the part of the trial court. Plaintiff complains of the charge given to the jury and of the refusal of the court to instruct as requested by his counsel. In a general way the circuit court called the attention of the jury to the issues or claims of the respective parties, as set forth in the pleadings, and informed that body that it was its duty to determine the facts from the evidence. Plaintiff complains that in the preliminary statement the court did not define contributory negligence, nor state that in order to preclude the plaintiff from recovering he must have "negligently" contributed to his own injury by placing himself in a dangerous position. This point seems to be fully explained by the charge. The court gave the following instructions, among others:
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Edwards v. Johnson, 453
...(Brittingham v. Stadiem, supra; Naegele v. Dollen, supra), or who hands a cocked gun over a gate to a hunting companion (Gibson v. Payne, 79 Or. 101, 154 P. 422), or who, while sitting in his living room entertaining a guest, undertakes to make an adjustment in the firing mechanism of his g......
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Edgar v. Brandvold
...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 pa......
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Grant v. State Indus. Acc. Commission
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Hatfield v. Gracen
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