Morgan v. Cox

• Decision Date: 31 January 1856
• Citation: 22 Mo. 373
• Parties: MORGAN, Defendant in Error, v. Cox, Plaintiff in Error.
• Court: Missouri Supreme Court

22 Mo. 373

MORGAN, Defendant in Error,

v.Cox, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1856.

1. Any negligence in the performance of what is lawful which causes loss to another, is an injury which confers a right of action.

2. The reasonable care which persons are bound to take in order to avoid injury to others, is proportionate to the probability of injury that may arise to others. He who does what is more than ordinarily dangerous, is bound to use more than ordinary care.

3. Where injury to another is caused by an act that would have amounted to trespass vi et armis under the old system of actions, as where one by the negligent handling of a loaded gun kills another's slave, it is no defence, it would seem, that the act occurred through inadvertence, or without the wrong-doer's intending it; it must appear that the injury done was inevitable, and utterly without fault on the part of the alleged wrong-doer.

Error to St. Clair Circuit Court.

Action to recover in the form of damages the value of plaintiff's slave, alleged to have been killed by the accidental discharge of a gun in the hands of the defendant, a minor, by reason of his negligence. The defendant answered by his guardian ad litem, denying the negligence. The facts sufficiently appear in the opinion of the court. There was a verdict and judgment for the plaintiff below, and the defendant brings the case here by writ of error.

F. P. Wright, for plaintiff in error, cited 12 Pick. 177; 6 Shepley, 32; 11 East, 60; 2 Pick. 621; 2 Taunt. 314; 18 E. C. L. Rep. 437; 243 C. L. Rep. 391; 2 Iowa Rep. 462.

Gardenhire, for defendant in error, cited Ward v. Weaver; Hobart, 390; 9 Mo. Rep. 738; 4 McCord, 161; 1 Dev. 185; 6 Mon. 337; 2 Miles, 298.

LEONARD, Judge, delivered the opinion of the court.

We see no grounds for disturbing this judgment. The suit was for the negligent shooting of the plaintiff's slave, and the only question was as to the fact of negligence. The defendant it seems had been out with his gun, and was asked by the plaintiff to aid him and his servant in driving an unruly cow across the Osage river; and while doing so he punched the cow with his loaded gun, and in replacing it across his horse, the hammer struck the saddle as he supposed and caused it to fire, by which the plaintiff's servant was shot and killed.

The court directed the jury, that if the killing, although unintentional, was occasioned by the negligence of the defendant, he was liable; and also instructed, at the instance of the defendant, that if the gun were discharged while the defendant was replacing it across his horse, he was not liable, unless the firing was occasioned by his negligence in replacing it; but refused to tell the jury, that if it were thus discharged and not while it was being used in punching the cow, the fact of its having been thus used did not render the defendant liable.

We think the jury were so instructed, as to the law of the case, as to leave the defendant without any ground of complaint; indeed the matter was submitted to the jury quite as favorably for him as the law would permit. The plaintiff put his right of recovery upon the ground of negligence, and the jury were told, that if it appeared from the evidence that the defendant had been guilty of it, they must find for the plaintiff; and ordinarily this would seem to be a sufficient direction, that they could not so find unless the proof satisfied them of the required fact. Here, however, the court, at the instance of the defendant, also directed, that if the accident occurred while the gun was being replaced across the horse, they must find for the defendant, unless the act was done negligently, and without taking proper care. The refused instruction, as to the effect of the previous act of punching the cow upon the subsequent firing, was quite unnecessary for the defendant, except to lead the jury astray; for the court had already said, that if the event occurred while the gun was being replaced, the defendant was not liable, unless he were guilty of negligence in replacing it; which was going to the very limit of the law, in that particular, for the defendant.

We are also satisfied, that there was quite enough evidence of negligence, to submit the case to the jury; and if we were called upon to express an opinion upon it, we should not hesitate to say, that it well warranted the verdict. If a person be guilty of an unlawful act, he is responsible for all the damage that is thereby occasioned to others. But here, it is true, the defendant had an undoubted right to carry his loaded gun about with him; and, therefore, that alone did not render him...