Tucker v. Lombardo

• Decision Date: 07 December 1956
• Citation: 303 P.2d 1041,47 Cal.2d 457
• Court: California Supreme Court
• 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. L. A. 24263

Page 1041

303 P.2d 1041

47 Cal.2d 457

Thurman TUCKER, Jr., a minor, by his guardian ad litem, Thurman Tucker; and Thurman Tucker, Plaintiffs and Appellants, v. Philip LOMBARDO, Defendant and Respondent.

L. A. 24263.

Supreme Court of California

Dec. 7, 1956.

Madden & McCarry, Long Beach, for appellants.

Moss, Lyon & Dunn, Gerold C. Dunn and Henry F. Walker, Los Angeles, for respondent.

Spence, Justice.

Plaintiffs appeal from a judgment based on a verdict in favor of defendant in an action for damages for personal injuries. There is no substantial conflict as to any material fact, and no claim is made that the verdict is not supported by the evidence. The parties' opposing contentions center on the propriety of the giving and refusal of certain instructions. A review of the record, however, leads us to the conclusion that there was no prejudicial error.

Plaintiff Thurman Tucker, Jr. (hereinafter called Tommy), a 12-year-old boy, had been employed on Saturdays and Sundays for about three months at the Dominguez Skeet Range. On Sunday morning, May 3, 1953, the day of the accident, Tommy was ordered to work at the 'high house,' a tower-like building. His job there was to load a spring apparatus, known as a Remington Trap Machine, with 'clay birds' or targets. He had done this work on about six previous occasions. The high house had an opening, shielded by metal plates, through which the bird was ejected when another employee, operating in the control house, pressed a button effecting the bird's release. In skeet shooting, the gunner takes a 'ready position' at the firing line and calls 'pull.' Upon this command the operator in the control house presses the button which releases the bird in the trap machine. Tommy, while working in the high house, was struck by shot discharged from a gun held by defendant, who was shooting from station number 8 on the skeet range. Tommy thereby lost the sight of one eye.

The range where the accident occurred was laid out in a half circle. Station number 1 was at the high house, number 7 was at the low house, and the intervening numbered stations formed a semi-circle arching to the south. Station number 8 was located at the midway point of an eastwest line running from station number 1 to station number 7, and was about sixty feet to the east of the high house. When the bird was released from the high house for a gunner at station number 8, its path of flight would be toward the 'breaking point,' which was eighteen feet north of station number 8 and the point beyond which the bird, if hit, would not count as a score. It appears that for scoring from station number 8, the travel distance for the bird, after emergence from the high house and before reaching the breaking point, would be about sixty-seven feet. The bird, when ejected from the machine, traveled at sixty miles an hour or ninety feet a second, so that the shooter had only about two-thirds of a second in which to make a score by hitting the bird. An expert on skeet shooting testified regarding the difficulty of shooting at station number 8 in that it 'gives you about half as much time to shoot as the rest of them. You have to shoot much faster there.'

The high house from which the bird was released was built of two by four framing lumber, which was covered by corrugated metal. It was nine and one-half feet high, sixty inches wide and sixty inches deep. The opening through which the bird was ejected, and behind which Tommy was employed in loading the trap machine, was in the east will and was seven inches long and seven inches wide. The opening was shielded by two metal plates attached to the outer wall. The trap machine was mounted on a wooden shelf which extended twenty-five and one-half inches back from the east wall of the high house. From the edge of this shelf to the rear or west wall of the house was thirty-four and one-half inches. Tommy testified that in operating the trap machine, he would place a bird in the machine and cock it by pulling down a throwing lever; then he would step back to the wall behind him so as to be clear of the upward swing of the throwing lever. After the operator in the control house released the bird, Tommy would step forward toward the machine and reload it. There was no communication between the high house and the control house, and Tommy would step forward to reload without knowing whether a gun was fired at the released bird. While he could hear the discharge of a gun if there was not too much noise from the lever operating, he could not tell from which range or at what bird it was fired.

Defendant Lombardo was using a 12-gauge over-and-under shotgun, with which he was familiar. He had shot skeet once or twice previously. Standing in a 'ready position' at station number 8, he looked toward the high house, called 'pull' as the signal for the operator, and waited for the bird to emerge. He testified that he raised his gun and fired as the bird was approximately two feet from the high house. A second or two later defendant heard Tommy 'holler' and saw him come out of the high house.

Tommy testified that after the bird had been released, he stepped forward to load the machine; that he was reaching for one of the birds stacked on the shelf alongside the machine when he was struck by some pellets from the shotgun; that he was thrown against the wall and his face was bleeding. 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 opening. The operator of the control house testified that when the boys first started to work in the high house, they were told to stand back after butting the target in the trap machine; that he knew that shot had come before into the high house through the opening and that he had talked to the boys, including Tommy, about it but he did not remember whether he had so warned Tommy that particular morning. Tommy testified that he had never noticed the shot marks and indentations on the metal around the opening in the high house, and that while he was working there no shot had ever before come through the opening. Mrs. Ruth, co-owner of the range with her husband, testified that she had not been aware that shooters had hit the high house though she admitted that she had seen the puncture holes on the metal around the opening and that they were 'painted over.' Defendant testified that he had never been inside the high house; that he knew that when shot was discharged from a shotgun, it spread out into a pattern but he did not know what the area of spread might be; and that he assumed that the shot would not go into the high house. He further testified that in talking to Mrs. Ruth immediately after the accident, she said 'we know it is not your fault' and the 'boys are often looking out the windows and they have been warned about that.'

At defendant's request, the court gave the following instruction: 'You are instructed that the duty owed by the defendant to the plaintiff in this case was to exercise ordinary care, that is the care that would be exercised by a reasonably prudent person in the same or similar circumstances. In this particular instance, however, the defendant was possessed of and using a firearm and a firearm is capable of causing severe injury. For that reason the defendant was required to foresee the possibility of injury and, to avoid it, to Exercise a degree of care commensurate with and in proportion to the danger involved, and, in the exercise of ordinary care, the quantum or amount of care exercised may be greater than would be necessary if he was not handling a loaded weapon. This is but another way of saying that the amount of care to be exercised by a reasonably prudent person will vary with the circumstances, and where the danger of injury is greater the amount of care to be used may be great.' (Emphasis added.)

This instruction correctly informed the jury that the standard of care required of defendant was that of ordinary care under the circumstances. Jensen v. Minard, 44 Cal.2d 325, 282 P.2d 7; Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 282 P.2d 12. But plaintiffs attack the use of the permissive word 'may' as diluting the established quantum of caution required of a person handling a loaded firearm. They claim that the instruction thereby injected a quantitatively false element into the jury's deliberations and left the jury without a proper appreciation of the controlling rules for judging defendant's conduct; and that they did not waive the error because of a 'failure to request an instruction' which correctly recited the high degree of caution required to meet the test of ordinary care in the use of firearms. Sexton v. Brooks, 39 Cal.2d 153, 158, 245 P.2d 496, 499. With reference to this latter point, it should be said that the instructions which plaintiffs did propose upon the subject were incorrect and were properly refused because they attempted to place the burden of proof upon defendant to show that he was not negligent. Jensen v. Minard, supra, 44 Cal.2d 325, 328-329, 282 P.2d 7.

While the challenged instruction is not a model, it must be read with the other instructions and in the light of the circumstances, in determining whether there was any prejudicial error. It was only one of a series of instructions given on this phase of the case. Thus, the trial court first defined 'negligence' (BAJI 101), and then stated that it was 'not an absolute term, but a relative one,' so that 'in deciding whether there was negligence in a given case, the conduct in question must be considered in the light of all the surrounding circumstances' (BAJI 101-A). Next, the court defined 'ordinary care' (BAJI 102) and amplified that standard as follows: 'Inasmuch as the amount of caution used by the ordinarily prudent person varies in direct...