Wood v. O'Neil

• Decision Date: 02 June 1916
• Citation: 90 Conn. 497,97 A. 753
• Court: Connecticut Supreme Court
• Parties: WOOD v. O'NEIL et al.

97 A. 753

90 Conn. 497

WOOD

v. O'NEIL et al.

Supreme Court of Errors of Connecticut.

June 2, 1916.

Appeal from Superior Court, Fairfield County; William H. Williams, Judge.

Action by John E. Wood, administrator, against Timothy O'Neil, a minor, and his parents, James H. O'Neil and wife. From direction of nonsuit in favor of the parents and refusal to set aside a verdict in favor of the son, plaintiff appeals. No error.

The following facts appear to be undisputed: The defendant Timothy O'Neil was nearly 16 years old at the time of the tragedy, and had some, but not much, experience in using shotguns. About November 1, 1911, his parents bought and put into his hands a shotgun. On November 7th Timothy O'Neil, in company with the plaintiff's decedent, Margaret Wood, and another girl, walked from O'Neil's house for some distance through a tract of woods to a public highway, taking with them the shotgun, which Timothy O'Neil had loaded less than half an hour before. The plaintiff's decedent carried the gun through the woods, and the defendant Timothy O'Neil took it from her when they reached the highway, where they were joined by another boy. They stood together talking until one of the party started to go home. Timothy had been leaning on the gun as it rested with its butt on the ground. He raised it to a horizontal position, when the gun was in some manner discharged, and the plaintiff's decedent, Margaret Wood, aged 16, who was standing about ten feet away from the defendant, received the charge in her throat, and died within a few minutes.

The plaintiff claimed and offered evidence to prove that Timothy O'Neil had forgotten that the gun was loaded, and that he negligently pointed it at the plaintiff's decedent and pulled the trigger in the belief that it was not loaded. The defendant denied that he purposely pointed the gun at Margaret Wood, denied that he pulled the trigger, and claimed that as the party was about to separate he lifted the gun for the purpose of carrying it under his arm or over his shoulder, and that the gun was accidentally discharged by reason of the hammer catching in some portion of his clothing. The plaintiff further offered evidence from which he claimed to have proved that the parents of the boy were negligent in putting a dangerous weapon into his hands. At the close of the plaintiff's evidence in chief the court directed a nonsuit in favor of the parents, and afterwards refused to set aside the verdict of the jury in favor of the boy.

John J. Walsh and Edward J. Quinlan, both of Norwalk, for appellant. John H. Light and Freeman Light, both of South Norwalk, for appellees.

BEACH, J. (after stating the facts as above). The plaintiff complains: (a) Of the refusal to set aside the nonsuit in favor of the parents; (b) of the refusal to set aside the verdict in favor of the boy; (c) of certain alleged errors in the charge of the court to the jury.

(a) It is alleged in paragraph 4 of the complaint that the parents knew when they put the gun into the boy's hands that it was a dangerous weapon in his hands. In so far as this can be construed as a charge of negligence based upon knowledge of any defect in the gun itself, it is not sustained by the evidence. There was some testimony that the gun was lighter on the trigger than an ordinary gun, and that this was due to a peculiarity of its internal construction, which, in the opinion of one expert witness, amounted to a defect. But there was nothing to show that either of the parents knew of that peculiarity, or that it was so marked that they ought to have known of it in the exercise of reasonable care.

Paragraph 7 of the complaint alleges that the parents were...