Taylor v. Webster

• Decision Date: 06 December 1967
• Docket Number: No. 40650,40650
• Citation: 231 N.E.2d 870,12 Ohio St.2d 53
• Parties: , 41 O.O.2d 274 TAYLOR et al., Appellants, v. WEBSTER, Appellee.
• Court: Ohio Supreme Court

Page 53

12 Ohio St.2d 53

231 N.E.2d 870, 41 O.O.2d 274

TAYLOR et al., Appellants, v. WEBSTER, Appellee.

No. 40650.

Supreme Court of Ohio.

Dec. 6, 1967.

Syllabus by the Court

1. That part of Section 2903.06, Revised Code, which forbids the owner or one having control of an air gun to knowingly permit its use by a minor under 17 years of age, imposes a specific rule of conduct designed to protect others, and the violation of such statute is negligence per se.

2. Where a defendant, the owner or having control of an air gun, is negligent in permitting its use by his ten-year-old son, and such negligence is followed by the independent act of a third person which directly results in injury to plaintiff, defendant's earlier negligence may be found to be a proximate cause of the injury, if according to human experience and in the natural and ordinary course of events defendant could reasonably have foreseen that the intervening act was likely to happen.

3. Where a defendant unlawfully and negligently permits his ten-year-old son to use an air gun with pellets, knowing that he has playmates and realizing that his possession of the gun may have injurious consequences, and a playmate takes and discharges the gun at plaintiff, another playmate, thereby damaging plaintiff's eye, the elements of proximate cause and reasonable foreseeability as they relate to defendant are factual issues which may be resolved against the defendant.

This is an action, grounded on negligence to recover damages for personal injuries and for expenses incurred as a result thereof, which originated in the Court of Common Pleas of Medina County. Henry Taylor, a minor, by his father and next friend, Howard Taylor, and Howard Taylor, individually, are plaintiffs, the appellants in this court, and Fay Webster is defendant and the appellee herein.

As developed from the pleadings, consisting of the petition and the amended answer, and by the evidence introduced on the trial, Henry Taylor, then aged ten, was visiting at the Webster home on September 27, 1958. Fay Webster, Mark's mother and a widow gainfully employed as the assistant administrator of an Akron hospital, was the possessor and in control of a Daisy BB air gun, a device from which, ordinarily, small round metal pellets are discharged through the release by a trigger of compressed air against them. Defendant had for some time permitted Mark, of about the same age as Henry, to use the gun unattended but with instructions to be careful in its handling. She knew that children visited her home to play with Mark.

On cross-examination, defendant admitted in substance that she was aware of the potential harm which might occur to other persons from Mark's possession and use of the gun.

On the date mentioned, according to Henry's testimony, which was not expressly contradicted and which was corroborated in certain respects by Mark's testimony, Mark and Henry had been shooting at targets with the air gun. Upon the approach of one of Mark's schoolmates, of about the same age, Mark placed the gun against the side of the Webster house, and the three boys went to the barn on the premises to play. Later, the schoolmate, over Mark's remonstrance, removed the gun from its resting place and began to chase Mark and Henry, discharging the gun at them. Mark and Henry climbed to the roof of the barn; the schoolmate continued to shoot, and, unfortunately, one of the pellets penetrated Henry's right eye, whereby successive cataracts formed and were removed, and the sight of the eye was materially impaired.

A jury verdict for $7,500 was returned for Henry against the defendant, and a verdict for $1,500 was returned for his father for medical expenses incurred in Henry's treatment. Judgment was rendered on the verdicts by the trial court, and motions, respectively, for judgment notwithstanding the verdict and for a new trial were overruled.

On an appeal on questions of law to the Court of Appeals, that court reversed the judgment below and rendered final judgment for the defendant.

Although the appellate court found that defendant was chargeable with a violation of Section 2903.06, Revised Code, and negligent as a matter of law, it further found that 'the original negligence of the defendant had terminated without damage, and the sole proximate cause of the injury was the wilful tortious conduct of the third boy which was not reasonably foreseeable by the defendant.'

The cause is now in this court for review and determination following the allowance of a motion to require the Court of Appeals to certify the record.

Dworken & Bernstein and Marvin P. Dworken, Cleveland, for appellants.

Hauxhurst, Sharp, Mollison & Gallagher, Burt Fulton and John P. Browne, Cleveland, for appellee.

ZIMMERMAN, Judge.

First, counsel for the appellants contend that the Court of Appeals substituted its judgment for that of the jury and reversed the judgment below on the weight of the evidence, which it was not permitted to do because of the incomplete bill of exceptions presented to it. However, the bill of exceptions before the court contained enough of the evidence submitted at the trial to show the management of the air gun by defendant, and the court found as a matter of law that such evidence was not sufficient to impose liability on her. Neither in the Court of Appeals opinion nor in its judgment entry...