Salisbury v. Crudale

• Decision Date: 16 January 1918
• Docket Number: No. 5057.,5057.
• Citation: 102 A. 731,41 R.I. 33
• Parties: SALISBURY. v. CRUDALE.
• Court: Rhode Island Supreme Court

102 A. 731

41 R.I. 33

SALISBURY.

v. CRUDALE.

No. 5057.

Supreme Court of Rhode Island.

Jan. 16, 1918.

Exceptions from Superior Court, Providence and Bristol Counties; Elmer J. Rathbun, Judge.

Action of trespass on the case for negligence by Charles P. Salisbury, by next friend, against Angelo Crudale. Verdict for plaintiff, and defendant excepts. Exceptions overruled, and case remitted to superior court, with directions to enter its judgment for plaintiff upon the verdict.

John F. Collins and Philip S. Knauer, both of Providence, for plaintiff.

Anthony V. Pettine and Pettine & De Pasquale, all of Providence, for defendant.

PARKHURST, C. J. This is an action of trespass on the case for negligence, brought by the plaintiff, a minor between 10 and 11 years of age at the date of the injury (October 25, 1915. The suit is brought, through the father as next friend, against Angelo Crudale, the father of a boy who is named Americo Crudale, and who at the date of the injury was between 12 and 13 years old.

The declaration alleges in substance as follows: That on October 25, 1915, the plaintiff was going from school in the city of Cranston to his home in Cranston by a way through certain property known as the "Charity Lots," permitted to be used by school children; that the defendant on and prior to October 25, 1915, was the owner of a gun by which bullets were discharged, and then had a minor sou named Americo Crudale, about 13 years old.

The declaration then alleges:

"That the defendant then and there owed the public a duty not to suffer or permit his said minor son to gain or to have possession of said gun, rifle, or other firearm then and there possessed by the defendant as aforesaid, in such a way and under such circumstances that said minor son might inflict injury upon the public and upon this plaintiff in particular by using or attempting to use said gun, rifle, or other firearm; that the defendant wholly neglected and violated his said duty in this that he suffered and permitted his aforesaid son to become and to be possessed and to have possession of the aforesaid gun, rifle, or other firearm, together with certain leaden bullets or cartridges, and further permitted his said minor son to go upon the aforesaid charity lots as above described and owned upon which the plaintiff was then and there traveling, armed with said gun, rifle, or other firearm and said bullets or cartridges, and further suffered and permitted his said minor son to use and to fire one or more of said bullets or cartridges in and through said gun, rifle, or firearm upon said charity lots while the plaintiff was traveling thereon as aforesaid."

Plaintiff further alleges in substance that defendant's minor son fired a bullet through the gun, the bullet struck the plaintiff in the thigh or hip, and lodged in the plaintiff's body, and caused the injury complained of, claiming permanent injury. The suit is to recover for this injury to the plaintiff. The case was tried before a judge of the superior court and a jury in Providence on January 31st and February 1, 1917, and the jury returned a verdict for the plaintiff in the sum of $892.

The defendant did not file any motion for a new trial, but in due course prosecuted certain exceptions to this court, based upon the rulings of the trial judge. The only exceptions now urged before this court are an exception to the ruling of the trial judge denying a motion, made by defendant's counsel at the conclusion of all the testimony, for the direction of a verdict for defendant, and an exception noted by defendant's counsel "to the entire charge of the court."

As to this latter exception this court has repeatedly held that an exception to the charge as a whole will not lie, and will not be considered. Ralph v. Taylor, 33 R. I. 503, 82 Atl. 279; State v. Wagner, 86 Atl. 147; Newton v. Weaver, 13 R. I. 619; State v. Sheehan, 28 R. I. 160, 66 Atl. 66. Therefore there is only one exception before the court to be considered, viz. that based upon the denial of the defendant's motion for the direction of a verdict in his favor after all the evidence was in. It is necessary for us, therefore, to determine whether upon all the evidence the jury could find the defendant guilty of such negligence as would render him liable for the injury suffered by the plaintiff.

So far as the time, place, manner, and result of the injury to the plaintiff is concerned, there is no substantial dispute. It appears that the plaintiff, who was then about 10 years old, at about 4:30 o'clock on the afternoon of October 25, 1915, was coming, with several boys of about his own age, from school and going in the direction of his home, by way of a path through some lots known as the "Charity Lots," in the city of Cranston; that these lots lie along and near a stretch of woods; that plaintiff and his companions were playing marbles together as they went along the path; that Americo Crudale, the defendant's son, who was then about 13 years old, with a companion named Carnavale, came from the woods toward the plaintiff and his companions, and then had a gun in his hands; that when Americo came near to the plaintiff and his companions, he said to them, "Run, or I'll shoot you" or "Hurry up!" or "Run!" as variously related by the plaintiff and his companions, at the same time aiming the gun in the direction of the boys; that the boys did not run or hurry, but walked away, and were about 30 feet from Americo when he fired the gun, and a bullet therefrom struck the plaintiff in the left buttock, and penetrated the flesh and muscles of the thigh, lodging therein. It further appears that the bullet was never removed; that the wound caused considerable pain and suffering, and the evidence tended to show a recurrence of pain to the date of trial and the probability of its recurrence for an indefinite time thereafter; and that his activity in the use of his leg is much impaired. No question as to the amount of the damages awarded by the jury is before us upon this record.

The gun used was produced in evidence, and is now before us. It appears to be, as described in evidence, of 22 caliber and a breech loader. And the wooden stock appears to have been broken away from the lock, and to have been replaced and rejoined to the lock by means of a common screw with a nut, and a nail, so as to permit the gun to be held and aimed in the usual way; but it appears from the evidence and by inspection of the gun before us that the breaking of the stock (which defendant testified that he did himself) did not in any way disable the metal part of the gun. On the contrary, the barrel, the lock, hammer, trigger—i. e., the operative parts of the gun, appear intact and in a serviceable condition, so that the gun could have been loaded, aimed, and discharged, even if the stock had not been mended.

The defendant's story is that he formerly lived in Providence up to May or June, 1915, when he moved to Cranston; that while living in Providence he was troubled by rats, and bought this gun here in evidence for use in shooting rats; that after he moved to Cranston in May or June, 1915, he was not troubled by rats, and did not use the gun for shooting rats; that on July 4, 1915, having some cartridges left, he shot them all off on that day, and never purchased any more; that after July 4, 1915, he never used the gun again. He testified:

"18 Q. What did you do with this gun after you moved to Cranston? A. After a couple of months I broke it, after the 4th of July. 19 Q. What did you break it for? A. I am afraid somebody get hurt of it, see? I didn't do any more; last time I used it was the 4th of July. I had no rats in the country here, and I spoil the gun for fear it might scare somebody, you know. 20 Q. What did you do with the gun after you broke it? A. Threw it under the bed. 21 Q. What bed? A. My bed."

He had previously testified that he had eight children. He further testified that he never saw the gun again until after the shooting here related; that he did not buy it for his son; that he did not permit his son to use it; did not know that he ever used it. And it is to be inferred from his testimony and that of his son that he never gave his son any instruction or caution as to the use of the gun, or as to the danger of using it. It is shown that the son knew that the father had this gun in his possession, for the son testified that he had used the gun, without his father's knowledge, once before the 4th of July, 1915, to shoot at tin cans in the yard; that he saw the gun with the broken stock under the father's bed a couple of days before the shooting of the plaintiff; that on the day of the shooting, about 2 o'clock p. m., he took the gun and the broken and detached stock from under the bed, himself repaired the stock, attaching it to the lock by means of a screw with a nut and a nail, then took it away from the house, and proceeded thereafter with his companion, Carnavale, to the "Charity Lots," where the shooting took place. As to the shooting he testified:

"30 Q. Now how did you happen to shoot Charles Salisbury? A. I. went down in the hollow, and when these boys came along I said, 'We will have some fun,' so when they came along there were two in front and a crowd behind. I said to the two in front. 'Hurry up!' and when the crowd came along they stopped and looked at me. They began talking, and that boy there (Earl Wiberg). I think, said, 'If you shoot we got a lot of witnesses.' Well, with that Tony Carnavale said, 'Shoot at the fence,' and I said it wasn't loaded, and I had it like that (illustrating), and shot it, and one of the boys fell. 31 Q. When you fired Charles Salisbury fell? It was little Charlie Salisbury? A. Yes. 32 Q. Did you have any cartridges with you that day? A. No, sir."

He further testified that he did not know that the gun was loaded when he fired it; that the only cartridge he had was the one that was in the gun; that he...