Harris v. Cameron

• Decision Date: 02 February 1892
• Parties: HARRIS v. CAMERON.
• Court: Wisconsin Supreme Court

81 Wis. 239

51 N.W. 437

HARRIS

v.CAMERON.

Supreme Court of Wisconsin.

Feb. 2, 1892.

Appeal from circuit court, Winnebago county; N. S. GILSON, Judge.

Action by Byron Harris, by D. W. Corning, guardian ad litem, against George H. Cameron, for personal injuries. Judgment for defendant. Plaintiff appeals. Affirmed.F. W. Houghton and Geo. G. Greene, for appellant.

The question of defendant's negligence was for the jury. Spensley v. Insurance Co., 54 Wis. 438, 11 N. W. Rep. 894;Atkinson v. Transportation Co., 60 Wis. 141, 18 N. W. Rep. 764; Railway Co. v. Kellogg, 94 U. S. 469;Kellogg v. Railway Co., 26 Wis. 223; 16 Amer. & Eng. Enc. Law, p. 436, and cases cited in note 3; Id. p. 444; Schumaker v. Railway Co., (Minn.) 48 N. W. Rep. 559;Gibbons v. Railway Co., 58 Wis. 335, 342, 17 N. W. Rep, 132; Railroad Co. v. Stout, 17 Wall. 657, 663;Kaples v. Orth, 61 Wis. 533, 21 N. W. Rep. 633;Jucker v. Railway Co., 52 Wis. 152, 8 N. W. Rep. 862;Carter v. Towne, 98 Mass. 567;Birge v. Gardiner, 19 Conn. 507;Lowery v. Railway Co., 99 N. Y. 158, 1 N. E. Rep. 608; Lane v. Atlantic Works, 111 Mass. 136;Binford v. Johnston, 82 Ind. 426;Kerr v. Forgue, 54 Ill. 472;Powers v. Harlow, 53 Mich. 507, 19 N. W. Rep. 257;Nagel v. Railroad Co., 75 Mo. 653;Keffe v. Railway Co., 21 Minn. 207;Railway Co. v. Styron, 66 Tex. 421, 1 S. W. Rep. 161; Railroad Co. v. Stout, 17 Wall. 657;Powell v. Deveney, 3 Cush. 300;Robinson v. Cone, 22 Vt. 214;Insurance Co. v. Tweed, 7 Wall. 44;Bridger v. Railway Co., 25 S. C. 24;Railway Co. v. Fitzsimmons, 22 Kan. 686;Koons v. Railroad Co., 65 Mo. 592; Lynch v. Nurdin, 1 Q. B. 29; Whirley v. Whiteman, 1 Head, 610;Hill v. Railway Co., 55 Me. 438;Bailey v. New Haven, etc., Co., 107 Mass. 496;Bryant v. Railway Co., 56 Vt. 710;Hibler v. McCartney, 31 Ala. 501; Railroad Co. v. Richardson, 91 U. S. 454; Shear. & R. Neg. §§ 686, 688, 739; Miller v. Pendleton, 8 Gray, 547;Conklin v. Thompson, 29 Barb. 218;Hill v. Charlotte, 72 N. C. 55;Mullins v. Blaise, 37 La. Ann. 92;Chaddock v. Plummer, (Mich.) 50 N. W. Rep. 135; Moebus v. Becker, 46 N. J. Law, 41; Ireland v. Plank-Road Co., 13 N. Y. 526, 533;Townley v. Railway Co., 53 Wis. 632, 11 N. W. Rep. 55;Hill v. City of Fond du Lac, 56 Wis. 246, 14 N. W. Rep. 25;Nelson v. Railway Co., 60 Wis. 324, 19 N. W. Rep. 52;Dodge v. Bank, 2 A. K. Marsh. 616;Railway Co. v. Kemp, 61 Md. 74; Railway Co. v. Buck, 96 Ind. 346; Salmon v. Railroad Co., 38 N. J. Law, 5; Railway Co. v. Chapman, 80 Ala. 615, 2 South. Rep. 738;Ehrgott v. Mayor, 96 N. Y. 264, 280;Harriman v. Railway Co., 45 Ohio St. 11, 12 N. E. Rep. 451; Nagel v. Railway Co., 75 Mo. 653;Bransom v. Labrot, 81 Ky. 638;Kolsti v. Railway Co., 32 Minn. 133, 19 N. W. Rep. 655; Railway Co. v. Bailey, 11 Neb. 333, 9 N. W. Rep. 50.

Phillips & Kleist, ( Gabe Bouck, of counsel,) for respondent.

ORTON, J.

The facts of this case, so far as necessary to make the decision intelligible, are substantially as follows: Some time prior to the 5th day of October, 1889, the defendant, a resident of the city of Oshkosh, and the father of the boy Robbie Cameron, of the age of about 11 years, bought at the hardware store of Webb & Rundles, in said city, for his son Robbie, a metallic air-gun, called the “Daisy Air-Gun,” to replace a wooden air-gun that Robbie had formerly had and used; and Robbie had played with and used this air-gun to shoot at a mark, and perhaps small birds, about his home and in the neighborhood, for some time. On the date aforesaid, two neighboring boys, Bud Thompson, about the age of 9 years, and Byron Harris, the plaintiff, of about the age of 14 years, who, with Robbie, had been in the habit of visiting and playing with each other, came to play with Robbie at his home,--Byron on stilts, and Bud on a safety bicycle. Robbie was playing with his air-gun, and Bud let Robbie use his “safety,” in exchange for the gun. Bud fired it several times, and finally aimed it at Byron, who said, “Stop; don't.” Bud then rested the gun on a board, a part of a grape trellis, and aimed it again at Byron, who tried to move out of the way a little on his stilts, and Bud fired, and shot Byron in the left eye, by which it was destroyed. This kind of air-gun was usually loaded with BB shot, and the defendant bought his son Robbie a quantity of such shot, to be used with the gun. Robbie had played with other boys in the neighborhood with his gun and other boys had used it. This kind of gun would shoot strong enough, near by, to kill or wound a small bird, or dent a board, and, as we know, destroy an eye. This court can take judicial knowledge of the nature and uses of this air-gun, as it can of “beer,” (Briffitt v. State, 58 Wis. 39, 16 N. W. Rep. 39;) or of “gas,” (Shepard v. Gas-Light Co., 6 Wis. 539;) or of an express or freight “car,” (Nicholls v. State, 68 Wis. 416, 32 N. W. Rep. 543.) It may be properly said, both from the evidence and common knowledge, that this kind of air-gun was often kept for sale by toy and hardware merchants; and, if not generally, was much, used by boys about the ages of these three boys, in the villages and cities of this state. And it may also be said that this kind of gun was manufactured as a toy; sold, bought, and generally used as a toy, and harmlessly. It is so generally known that a particular description of it is not necessary. The power is air pressure, which is forced into a small space in the small barrel by a plunger; and by a movement of the trigger the compressed air escapes outwardly, and forces out the shot with considerable force. It should be said that the boy Bud Thompson did not intend to shoot Byron in the eye orface. Discharged against the clothing, it would have been harmless. and so he probably intended. Whatever may be said of the continuity of dependent causes which connect the defendant with this act of the boy Bud Thompson, it was an act of carelessness on the part of this boy who did the shooting. He aimed at Byron, and intended to shoot him in some place, and it is questionable whether he is not primarily and independently liable to the plaintiff for the injury. But this action is brought against George H. Cameron, the father of the boy Robbie, who loaned the gun to Bud Thompson; and he is sought to be held liable for the injury, on the ground of his negligence in buying the gun for Robbie, his son. After a fair and full trial of the case, the court, on motion of the defendant, granted a nonsuit, and from this judgment this appeal is taken.

This case presents very important and unusual questions of law in connection with the facts, and they have been presented to this court and discussed by eminent counsel on both sides with great learning and ability. The two main questions are: First. Was the defendant guilty of an act of culpable negligence, per se, in buying this air-gun for his boy? Second. If so, could he have reasonably anticipated or expected such a dangerous and improper use of it by the boy Bud Thompson? If it is held that the defendant was not guilty of an act of negligence, per se, in so buying the gun, then it becomes necessary to decide the second question. We are clearly satisfied that it was not an act of culpable negligence on the part of the defendant. The act or fact must be such that negligence can be directly and logically inferred from it. Wood v. Railway Co., 51 Wis. 196, 8 N. W. Rep. 214. The defendant's negligence must be proved, and cannot be presumed. Chamberlain v. Railway Co., 7 Wis. 367;Steffen v. Railway Co., 46 Wis. 259;Denby v. Willer, 59 Wis. 240, 18 N. W. Rep. 169. The defendant's negligence in buying this article for his son, and giving it to him to use, must mainly depend upon the nature and uses of the thing itself. What is it? It is called an “air-gun.” A gun, in the usual sense, is a “weapon which throws a projectile or missile to a distance; a fire-arm, for throwing a projectile with gunpowder.” A weapon is “an instrument of offensive or defensive combat; something to fight with.” Webst. Dict. A fire-arm is “a weapon which acts by the force of gunpowder.” Id. Our statute (section 1, c. 116, Laws 1882, and section 2, c. 329, Laws 1883) provides: “It shall be unlawful for any person to sell or use, or have in his possession for the purpose of exposing for sale or use, any toy pistol, toy revolver, or other fire-arm.” “It shall be unlawful for any dealer in pistols or revolvers, or any other person, to sell, loan, or give any pistol or revolver to any minor in this state.” These prohibited pistols or revolvers must be fire-arms,--that is, “weap-ons which act by the force of gunpowder.” The air-gun or pistol is not prohibited. This air-gun is not a gun, or a weapon, in the above significance of the words; but called a “gun,” imitative only of a real gun, to give it dignity to a boy, or to play soldier with. The bow and arrow, when put in the form of a cross-bow, is called a “cross-gun,”--a plaything for boys. One of these will put out an eye, if so aimed; and so, too, as to many toys and playthings, perfectly harmless and inoffensive in themselves, but whose common use can be perverted into a dangerous use by design. There are very few of the most harmless toys which cannot be used to the injury of another. A pocket-knife, that a boy must have to whittle and make things with, may become, in the hand of a bad boy, a most dangerous instrument of wrong and injury. Every boy over the age of six years or less must have a “ball club;” and a boy of ten or more can with it knock out an eye, or the teeth, or crush in the skull, of another boy; and a hard “regulation ball” may put out an eye. Many of the toys for a baby may be used for injury. In all of these cases the thing in itself, and when used in the manner and for the purposes for which it was made, and when put to its ordinary or common use, is harmless, and yet may be used exceptionally for personal injury. It is easy to convert almost any good thing into an evil by improper use. What...