Jensen v. Minard

• Court: United States State Supreme Court (California)
• Citation: 282 P.2d 7,44 Cal.2d 325
• Decision Date: 19 April 1955
• Parties: Roy C. JENSEN, Neoma Jensen, and Carolyn Jensen, a minor, by and through Roy C. Jensen, her Guardian ad litem, Plaintiffs and Appellants, v. Floyd MINARD, Defendant and Respondent. Sac. 6531

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282 P.2d 7 44 Cal.2d 325 Roy C. JENSEN, Neoma Jensen, and Carolyn Jensen, a minor, by and through Roy C. Jensen, her Guardian ad litem, Plaintiffs and Appellants,
v.
Floyd MINARD, Defendant and Respondent. Sac. 6531. Supreme Court of California April 19, 1955.
Rehearing Denied May 18, 1955.

[44 Cal.2d 326] Vernon F. Gant, Modesto, for appellants.

David F. Bush and Bush, Ackley & Milich, Oakdale, for respondent.

TRAYNOR, Justice.

Judgment was entered on a verdict for defendant in an action for wrongful death. Plaintiffs appeal from the judgment and the order denying their motion for a new trial. Since the latter order is not appealable, the appeal therefrom is dismissed.

On May 21, 1951, Bonnie, 12, and her sister Carolyn, 8, got off the school bus at the intersection of Wren and Sierra roads in Stanislaus County at about 4:10 p.m. and started [44 Cal.2d 327] homoeward along Wren Road. Defendant's home is located near and just to the west of the intersection of Wren and Sierra roads, which bound his farm land on the east and north. He testified that he was acquainted with the Jensen children and had frequently seen them get off the bus at Wren and Sierra roads. He saw them get off on the day in question while he was sitting with a friend on the patio of his home and watched them proceed along Wren Road until they were lost from view. At about this time he stood up and fired a .22 caliber rifle at a sparrow in his strawberry patch approximately 60 or 65 feet away. He looked up and down Wren Road and into the field beyond before firing and the children were not in sight. Shortly after firing the rifle, he heard a child scream, and he ran toward Wren Road and found Bonnie lying on the road approximately 180 feet south of his line of fire and approximately 200 yards from the point of firing. She had been struck in the

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head by a bullet from his gun and died later that day. To support their theory that defendant must have fired in the direction of the children, plaintiffs introduced expert testimony indicating that the bullet had not ricocheted. Defendant introduced expert testimony indicating that it had. To prove that he was not negligent in failing to foresee the possibility of harm from a ricochet, he presented expert testimony that the chance of the accident's happening as a result of a ricochet was only one in ten million.

Plaintiffs contend that the trial court erred in failing to instruct the jury that 'One who causes injury to another by discharging a firearm must, in order to excuse himself from liability, show that he was absolutely without fault.' This instruction, taken from the opinion of the court in Rudd v. Byrnes, 156 Cal. 636, 640, 105 P. 957, 26 L.R.A.,N.S., 134, not only requires that the defendant be absolutely without fault but places the burden of proof of this issue on him. In ordinary negligence cases, however, the standard of care is ordinary care under the circumstances and the burden of proof is on the plaintiff. The question is presented, therefore, whether the court in the Rudd case meant to estblish a special rule to govern injuries caused by firearms. When the language is read in context, it is clear that the court did not establish such a rule, but was merely emphasizing the proposition that owing to the dangerous character of the instrumentality, ordinary care in the use of firearms requires a very high degree of caution. 'In [44 Cal.2d 328] short, the rules of law governing actions for injuries caused by the discharge of firearms are not different from the rules governing actions for any injuries claimed to have been inflicted by the negligence of the defendant. By reason of the dangerous nature of such weapons, a person handling them is held to a high degree of care. If he has not used the degree of care appropriate to the circumstances, and injury results, he will be liable to the person injured * * *.' Rudd v. Brynes, 156 Cal. 636, 641, 105 P. 957, 959, 26 L.R.A.,N.S., 134; see also, Cucinella v. Weston Biscuit Co., 42 Cal.2d 71, 75, 265 P.2d 513; Lasater v. Oakland Scavenger Co., 71 Cal.App.2d 217, 221, 162 P.2d 486.

In the present case the jury was properly instructed on this theory. Negligence was defined as the failure to use ordinary care. The court then pointed out that 'inasmuch as the amount of caution used by the ordinary prudent person varies in direct proportion to the danger known to be involved in his undertaking, it follows that in the exercise of ordinary care, the amount of caution required will vary in accordance with the nature of the act and the surrounding circumstances. To put the matter another way, the amount of caution required by the law increases, as does the danger that reasonably should be apprehended * * *. What ordinary care is in any particular case depends upon what the circumstances are. Here the defendant was firing a gun which is an extremely dangerous activity. Ordinary care while firing a gun demands that the person firing the gun must exercise extreme caution while so doing. If you find that the defendant did not use extreme caution, then you must find that he was negligent.'

This case is not one in which the purpose of the shooting was unlawful, see, Corn v. Sheppard, 179 Minn. 490, 229 N.W. 869, 871, or in which a statute or ordinance prohibits the use of any firearms. It is therefore unnecessary to decide whether defendant might be liable despite the exercise of extreme caution if the shooting were otherwise wrongful. Under the circumstances of this case there is no material difference between defining ordinary care in the use of firearms in terms of extreme caution or in terms of being absolutely without fault. Thus, to the extent that the requested instruction related to the standard of care, it was adequately covered by the instructions that were given, and to the extent that it purported to place the burden of proof on defendant, [44 Cal.2d 329] it was erroneous. Accordingly, the trial court did not err in refusing to give it.

The trial court committed prejudicial error, however, in giving certain instructions requested by defendant. The jury were instructed that 'The mere fact

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that an accident happened, considered alone, does not support an inference that some party, or any party, to this action was negligent.'...