Tucker v. Lombardo
| Decision Date | 12 June 1956 |
| Citation | 298 P.2d 562 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Thurman TUCKER, Jr., a minor, by his guardian ad litem, Thurman Tucker; and Thurman Tucker, Plaintiffs and Appellants, v. Philip LOMBARDO, Defendant and Respondent.* Civ. 21406. |
Madden & McCarry, Long Beach, for appellants.
Moss, Lyon & Dunn, Gerold C. Dunn, and Henry F. Walker, Los Angeles, for respondent.
In plaintiffs' action to recover for personal injuries allegedly caused by defendant's negligence, the jury returned a verdict for defendant upon which judgment was entered. This appeal is from the judgment and the order denying plaintiffs' motion for a new trial. The latter order being nonappealable, the purported appeal therefrom in dismissed.
The record discloses that at the time of the accident plaintiff, Thurman Tucker, Jr., (hereinafter called Tommy) was a schoolboy who had almost attained his thirteenth birthday. For about three months, Tommy had been employed on Saturdays and Sundays at the Dominguez Skeet Range. He reported for work on May 3, 1953, and at about 9:00 a. m. was ordered to work the 'high house.' His job there was to load a spring apparatus known as a Remington Trap Machine, which ejected targets commonly referred to as birds. He had done this work on about six previous occasions. The high house contains an aperture through which the target bird is ejected into the air to be shattered by the gunner. The actual release of the target is effected by an employee manipulating a mechanism situated in what is known as the 'control house.' In skeet shooting, the gunner assumes the 'ready position' at the firing line and gives the command 'Pull.' The operator in the 'control house' (referred to as the 'puller') then presses a button which releases the target placed in the trap machine. Tommy was injured while working in the high house when struck by a shot discharged from a gun held by defendant who was firing from shooting position No. 8. He subsequently lost the sight of his right eye.
The accident occurred on a range which was laid out in a half circle. It was one of several ranges in the vicinity. The high house was located just to the west of station No. 1, which was the most westerly of the shooting points. Stations Nos. 2 to 7 were placed at intervals along a semi-circle arching to the south and east. The terminal point, station No. 7, was due east of station No. 1. Station No. 4 was the most southerly of the shooting points on the curve of the semi-circle. Station No. 8 was located at the midway point of an east-west line (imaginary) running from station No. 1 to station No. 7. It was some 45 feet directly north of station No. 4 and about 60 feet to the east of the high house. The 'control house' consisted of a small shed located just to the north of the No. 4 position and was manned by a sixteen year old boy named Bayless on the day of the accident. Bayless' function was to press the button releasing the targets loaded by plaintiff in the high house, and to keep the score made by the shooters.
When the target bird was released from the high house for a gunner at the No. 8 position, its path of flight was north by east towards the 'breaking point,' the point beyond which the target, if hit, would not count as a score. The 'breaking point' was 18 feet north of station No. 8. Thus, a target ejected from the high house would travel about 67 feet before it reached the breaking point and, in order to score, the gunner would have to hit it at some point between its place of emergence and the 'breaking point.' While the skeet shooter may not score by shooting at the bird which has passed the 'breaking point,' he may shoot at it at any point in its trajectory prior to its crossing the 'breaking point.' Alex Kerr, an expert in skeet shooting, testified regarding the difficulty of shooting at station No. 8, asserting it
Defendant Lombardo, who was shooting a round of skeet with a party of six, reached the No. 8 station at about 10:00 a m. He was armed with a twelve-gauge over-and-under shotgun belonging to his brother-in-law which he had used about twenty-five or thirty times. He had shot skeet about once or twice before. Defendant assumed the 'ready position' about two feet south of the small post marking station No. 8. In that posture, he looked west toward the high house, with his back turned to the south and the barrel of his gun angled to point at the ground. His left hand was on the forward part of the gunstock while his right hand held the grip of the gun which was near his lower rib.
The 'high house' from which defendant awaited the release of the target was constructed of a wood base. It was built of 2X4 framing lumber which was covered by corrugated metal. It was 9 1/2 feet high, 60 inches wide and 60 inches deep. It was entered by a door on the north side. The aperture through which the targets were ejected, and behind which plaintiff was employed in loading the trap machine, was in the east wall and was 17 inches in width and 7 inches from top to bottom. The aperture was shielded by two netal plates attached to the outer wall. One plate, 18X18 inches, jutted out from the bottom of the aperture, tilted up slightly from the horizontal. It was joined at one side by a vertical triangular-shaped shield 17 inches wide at the top and 7 inches at the bottom. The trap machine was mounted on a wooden shelf which extended 25 1/2 inches back from the east wall of the 'high house.' The distance between the edge of this shelf and the rear or west well of the house was 34 1/2 inches. Tommy testified that in operating the trap machine, he placed a bird in the machine and then cocked it by pulling down on a throwing lever. This lever extended 6 inches beyond the shelf when cocked, and it swung upwards in an are when the bird was ejected from the machine. Tommy testified he stepped back to the wall behind him after cocking the machine to be clear of the upward swing of the throwing lever. When the 'puller' in the control house released the target, Tommy would step forward towards the machine and reload it. Since there was no communication between the high house and the control house, Tommy would step forward to reload as soon as the target was released, without ascertaining whether a gun was fired. When not obscured by the noise of the lever operating, he could hear a shot go off, but he could not tell from which range or at what bird it was fired.
Immediately prior to the accident, defendant gave Bayless the command 'Pull' from his 'ready position' at station No. 8. Bayless pressed a button which released the bird from the 'high house.' Defendant stated that he waited until the bird was visible, at which time he raised his gun and fired. The bird was approximately 2 feet from the 'high house' when he fired. A second or two later, defendant testified he heard plaintiff 'holler' and come out of the high house. Bayless testified that after he pressed the release button, he watched the bird so that he might score defendant's shot. He stated he first saw the bird when it was 2 feet from the high house, and that it emerged broken 'in little pieces.' (While a broken bird need not be taken as a target, many shooters will fire if it comes out 'fairly intact,' and has a 'fairly normal flight path,' since it may be difficult to withhold a shot once they have swung upon the target.) Since he noted the bird was broken, Bayless looked towards defendant to see what he would do. Defendant's back was towards him and he observed that he was bringing the gun down from the firing position when he heard it discharge. Bayless recorded defendant's shot at station No. 8 as a miss. Henry Lewis, a member of defendant's shooting party, testified he was concentrating on the aperture and saw the bird emerge in broken pieces. Simultaneously he heard a gunshot. After the accident, Mrs. Ruth, co-owner of the range with her husband, asked defendant about the accident. She testified defendant told her 'he guessed his gun was discharged accidentally.' (Italics added.)
Defendant testified his shot shattered the bird. He stated that when he fired at the bird the high house was directly in his line of fire. Mr. Kerr, the expert, testified regarding the general custom in the field of skeet shooting. He stated it was customary for a shooter to fire at a bird as soon as he can after its emergence, even if the target is between him and the high house.
Tommy testified that after Bayless released the bird, he stepped forward to reload the machine. He was reaching for one of the birds stacked on the shelf alongside the machine when he was struck by six pellets from the shotgun. He was thrown against the wall and began to bleed. One of the pellets caused a double perforation of his right eye, which was subsequently removed.
Defendant introduced photographs of the high house showing perforations resembling shot punctures in the corrugated metal around the aperture. Tommy testified he had never noticed them. Mrs. Ruth, when cross-examined about the marks, testified: 'This house was made of some old reclaimed tin and I don't know what caused those marks except our houses are all beat up, and painted over.' Bayless testified the boys working in the high house were told to stand back after putting the target in. He knew that buckshot had come into the high house before and had talked to 'the boys' about it but there was no testimony he had informed Tommy of this. Tommy testified he did not know that shot had penetrated the high house before. Mrs. Ruth testified she was not aware prior to Tommy's accident that shooters had hit the high house.
Defendant testified he had never been inside the high house and did not know what, if...
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Duran v. City of Maywood
...Although some of the Plaintiffs' proposed language appeared in the intermediate appellate court opinion, Tucker v. Lombardo, 298 P.2d 562, 566-67 (Cal. Ct. App. 1956), this decision was subsequently vacated and reversed six months later by the California Supreme Court. Tucker v. Lombardo, 4......