Summary
holding that proximate cause and reasonable foreseeability were factual issues for the jury to resolve where defendant unlawfully and negligently permitted ten-year-old son to use air gun with pellets, knowing that he had playmates, and realized that his possession of gun might have injurious consequences, and playmate took and discharged gun at plaintiff, another playmate, thereby damaging plaintiff's eye
Summary of this case from Estate of Heck ex rel. Heck v. StofferOpinion
No. 40650
Decided December 6, 1967.
Negligence — Permitting use of air gun by minor forbidden — Section 2903.06, Revised Code — Violation of statute negligence per se — Use by third party resulting in injury — Proximate cause — Reasonable foreseeability — Factual issues.
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.
APPEAL from the Court of Appeals for Medina County.
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.
Messrs. Dworken Bernstein and Mr. Marvin P. Dworken, for appellants.
Messrs. Hauxhurst, Sharp, Mollison Gallagher, Mr. Burt Fulton and Mr. John P. Browne, for appellee.
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 evidenc 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 of reversal is there any indication or suggestion that there was a reversal on the weight of the evidence.
Section 2903.06, Revised Code, in force at the time of Henry's injury, recites:
"No person shall sell, barter, furnish, or give to a minor under the age of seventeen years, an air gun, musket, rifle, shotgun, revolver, pistol, or other firearm, or amunition therefor, or, being the owner or having charge or control thereof, knowingly permit it to be used by a minor under such age.
"Whoever violates this section shall be fined not more than one hundred dollars or imprisoned not more than thirty days, or both. * * *"
It is the settled law of this state that where a legislative enactment imposes upon a person a specific duty for the protection of others, his failure to observe that duty constitutes negligence per se. Schell v. DuBois, 94 Ohio St. 93, 113 N.E. 664, L.R.A. 1917A 710, and Eisenhuth v. Moneyhon, 161 Ohio St. 367, 119 N.E.2d 440, and the cases cited therein.
In our opinion, Section 2903.06, Revised Code, comes within the above definition, and defendant was chargeable with negligence per se in permitting her son Mark to have and use the air gun involved. See 68 A.L.R. 2d, annotation, at page 800.
The trial court in special charges and in the general charge instructed the jury on the subjects of "negligence," "proximate cause" and "foreseeability," and those charges were substantially correct.
Next comes the question of whether the evidence was of such a nature from a legal standpoint as to warrant the verdict and judgment against defendant in the trial court. We think it was.
A rule of general acceptance is that, where the original negligence of the defendant is followed by the independent act of a third person which directly results in injurious consequences to plaintiff, defendant's earlier negligence may be found to be a proximate cause of those injurious consequences, 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. Pudlo v. Dubiel, 273 Mass. 172, 173 N.E. 536.
Or, stating the proposition a little differently, the connection between the defendant's negligence as a proximate cause of an injury is not broken, if an intervening event is one which might in the natural and ordinary course of things be anticipated as reasonably probable, and the defendant's negligence remains an important link in the chain of causation. Neff Lumber Co. v. First National Bank of St. Clairsville, 122 Ohio St. 302, 171 N.E. 327, citing Mouse v. Central Savings Trust Co., 120 Ohio St. 599, 167 N.E. 868.
It is a matter of common knowledge that the placing of an air gun in the hands of a youngster without direct supervision is fraught with danger. By so doing, a reasonable probability exists that a situation could develop of the kind shown in this case. By allowing Mark to have the gun defendant laid herself open to the consequences of that unlawful act. Where two or more persons of immature years and judgment congregate with an air gun available, there exists the opportunity and often the impulse to use the gun carelessly and recklessly with the result that injury ensues. News accounts of such happenings are not uncommon.
There may be more than one proximate cause of an injury. Here, defendant's violation of the statute and the irresponsible conduct of Mark's schoolmate combined as proximate causes to bring about Henry's misfortune. We think the evidence is of such a character as to proximate cause and reasonable foreseeability by the defendant that under the instructions of the court the jury was within its prerogatives in returning the verdicts it did.
Additional support for our conclusion may be found in Poe v. Canton-Mansfield Dry Goods Co., 36 Ohio App. 395, 173 N.E. 318; Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395, 68 A.L.R. 2d 761, and the cases cited and comments made in the annotation which follows; Whalen v. Bennett, 4 Mich. App. 81, 143 N.W.2d 797; 2 Restatement of the Law of Torts 2d, Section 447, page 478. Compare Williams v. Davidson, 241 Ark. 699, 409 S.W.2d 311.
For a general discussion of "proximate cause" and "foreseeability," see Mudrich v. Standard Oil Co., 153 Ohio St. 31, 90 N.E.2d 859.
The judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
TAFT, C.J., MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.