Knott v. Wagner

• Decision Date: 05 June 1886
• Citation: 84 Tenn. 481
• Parties: KNOTT, Jr., v. WAGNER.
• Court: Tennessee Supreme Court

84 Tenn. 481

KNOTT, Jr.,

v.WAGNER.

Supreme Court of Tennessee.

June 5, 1886.

Appeal from circuit court, Shelby county.

An action in form trespass vi et armis, to recover damages for personal injuries which the plaintiff, while passing along the highway, sustained from the discharge of a gun by the defendant. Verdict and judgment for defendant. New trial denied, and plaintiff appeals.

J. W. Vernon, for plaintiff. W. B. Glisson, for defendant.

COOKE, J.

The judgment of the circuit court in this case is erroneous, and must be reversed. The plaintiff, together with one Dunscomb, was traveling in a buggy along a public road, near Memphis, known as the “New Raleigh Road.” They passed the defendant, who was out hunting birds with a shot-gun. Either plaintiff or Dunscomb remarked to the defendant, pointing to a field at one side of the road, that there were birds in that field; that they had been there hunting the day before. The defendant knew there were birds in the field, as he testified himself; had frequently been there hunting them before, and was going into the field if nothing had been said to him by plaintiff or Dunscomb. The defendant did go into the field, and plaintiff and Dunscomb went along the road they were traveling a short distance, when they came to another public road, known as “Springdale Avenue,” into which they turned, and which led along one side of the field. They had gone but a short distance along this road when they saw the plaintiff in the field, perhaps, according to the weight of the proof, about 40 or 50 yards from them, going in a direction parallel to that in which they were going, with his gun in a shooting position, and in an attitude as though slipping upon some birds. Plaintiff and Dunscomb stopped their horse in the lane to see defendant shoot at the birds. Very soon the defendant fired as though he had shot at them on the ground, or when they were about rising to fly. The shot was fired in a direction parallel to that in which plaintiff and his friend were traveling, but the birds flew round in the direction of where the plaintiff was, and defendant immediately turned, and fired the other barrel directly towards the plaintiff. Several of the shot struck him, and one in the eye, by which it was seriously injured; and this suit was brought to recover damages for the injury, etc.

One count of the declaration alleges that the defendant unlawfully and willingly shot the plaintiff, and in another it was alleged that he carelessly, negligently, and unlawfully shot him, etc., while traveling along a public road of the first class, and that said shot was fired within less than 200 yards of said public road, at a mark or other object, for amusement, by the defendant. The plea was not guilty.

His honor charged the jury, among other things, that it was unlawful to shoot a gun at a mark or other object, for amusement, within 200 yards of a public road, such as the proof showed both of said roads to be; and that any person so offending was liable for all damages resulting therefrom; and that the plaintiff had a right to be in and along said public roads, and to be protected from being shot when in said roads; and if they found that plaintiff did not continue at or encourage the shooting by the defendant at that particular time and place, then such shooting was negligence per se on part of defendant; but that if they found that before the...