FOX; ASHBURN

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

June 12, 1956.
Rehearing Denied July 6, 1956.
Hearing Granted Aug. 8, 1956.
Ashburn, J., dissented.

Madden & McCarry, Long Beach, for appellants.

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

FOX, Justice.

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 'gives you about half as much time to shoot as the rest of them. You have to shoot much faster there.'

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 any, protective clothing the trap machine operator wore, nor whether the shields outside the aperture were adjustable. He did not know what procedure the operator followed inside the high house when he fired, but assumed the shot would not go into the high house. He knew that when shot was discharged from a shotgun, it spread out into a pattern, but he did not know how large an area the pattern covered when discharged from his gun.

Plaintiffs' paramount contention on appeal is that the court committed prejudicial error in its instructions to the jury, and by its refusal of certain instructions submitted by them. We have concluded, on the basis of cases of our Supreme Court decided subsequent to the trial of the instant matter, that this contention must prevail.

At defendant's request, the court instructed the jury on the standard of care required of defendant, and the quantum of care applicable to the circumstances, in the following language: '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 very with the circumstances, and where the danger of injury is greater the amount of care to be used may be great.' (Italics added.)

The vice of this instruction is that while it correctly informed the jury that the standard of care required of defendant was that of ordinary care under the circumstances, it attenuates and dilutes, in the portion italicized above, the established quantum of care required of a person handling a loaded weapon. It is now settled law 'that owing to the dangerous character of the instrumentality, ordinary care in the use of firearms requires a very high degree of caution.' Jensen v. Minard, 44 Cal.2d 325, 327, 282 P.2d 7, 8. (Italics added.) The Jensen case quotes with approval, 44 Cal.2d at page 328, 282 P.2d at page 8, the following language from Rudd v. Byrnes, 156 Cal. 636, 105 P. 957, 26 L.R.A., N.S., 134: "By reason of the dangerous nature of such weapons, a person handling them is held to a high degree of care. If he has not used the degree of care appropriate to the circumstances, and injury results, he will be liable to the person injured * * *." In Warner v. Santa Catalina Island Co., 44 Cal.2d 310, at page 317, 282 P.2d 12, at page 16, a case decided on the same day as the Jensen case, the subject is well crystallized by the following observation: 'All persons are required to use ordinary care to prevent others being injured as the result of their acts; ordinary care has been defined as that degree of care which people of ordinary prudent behavior could be reasonably expected to exercise under the circumstances of a given case. In other words, the care required must be in proportion to the danger to be avoided and the consequences that might reasonably be anticipated. [Citations.] The risk incident to dealing with * * * firearms * * * requires a great deal of care to be exercised. In other words, the standard of care required of the reasonable person when dealing with such dangerous articles is so great that a slight deviation therefrom will constitute negligence. [Citations.]'

It is at once partent that the challenged instruction not only failed to apprise the jury that a person firing a gun must use extreme caution (as did the instruction in Jensen approved by the court) but it departed significantly from this standard by asserting '* * * in the exercise of ordinary care, the quantum or amount of care may be greater than would be necessary if he was not handling a loaded weapon * * *' and concluding 'where the danger of injury is greater, the amount of care to be used may be great.' By the employment of the permissive word 'may' the court injected a quantitatively false element into the jury's deliberations, for the mandate of the law is that a person handling firearms must exercise extreme caution while so engaged. Jensen v. Minard, supra; Warner v. Santa Catalina Island Co., supra; Rudd v. Byrnes, supra. Having undertaken to expound the law respecting the duty of care which is placed on one using a loaded gun, and having rejected instructions on the subject tendered by plaintiffs, the court was under an obligation, in charging the jury on this fundamental and vital issue, to embody in its only instruction on the subject an accurate presentation of the governing legal principles germane to the case. The instruction given was clearly incorrect, incomplete and misleading and the jury was left without a proper orientation in, or understanding of, the controlling rules for judging defendant's conduct. As stated in Sexton v. Brooks, 39 Cal.2d 153, 158, 245 P.2d 496, 499: 'The instruction which was given was erroneous and misleading, and defendant did not waive the error by failure to request an instruction which correctly defined her duty to plaintiff.'

That this error was serious cannot be doubted. Mr. Kerr, the expert, testified that if he wanted to get the feel of his gun by firing prior to embarking on a shoot, he would not shoot at the high house. This, in part, would be due to the possibility of a ricochet, a danger enhanced by the fact that the metal surface of the high house was not flat but corrugated. He also testified that shooting directly in front of the high house was in accord with the customary practices of skeet shooters. Where the issue is one of negligence in the performance of an act, evidence of the ordinary practice and custom which is generally followed in the performance of such act under similar circumstances is competent. Burke v. John E. Marshall, Inc., 42 Cal.App.2d 195, 203-204, 108 P.2d 738; Hargrave v. Acme Tool & Tester Co., 125 Cal.App.2d 34, 39, 269 P.2d 913. But evidence of custom is received not as proof of, or a substitute for, the substantive law's standard of conduct, which is due care, but merely as a factor for consideration by the jury in determining whether or not the particular conduct of a party measures up to the legal standard. Miller v. Midway Fishing Tool Co., 106 Cal.App.2d 612, 614, 235 P.2d 630. Conformity to the general practice or custom does not excuse the actor's conduct unless it was also consistent with due care. Irelan-Yuba Gold Quartz Mining Co. v. Pacific Gas & Electric Co., 18 Cal.2d 557, 567, 116 P.2d 611; Jensen v. Southern Pacific Co., 129 Cal.App.2d 67, 73, 276 P.2d 703; Reagh v. San Francisco Unified School Dist., 119 Cal.App.2d 65, 70, 259 P.2d 43. If, instead of being equivocally instructed that the quantum of care of one handling a loaded weapon 'may be great' the jury had been properly apprised of defendant's positive duty to exercise great care or extreme caution, it would have been able to evaluate intelligently defendant's conduct in shooting directly at the high house which he knew was occupied by a human being, even though that might have been the prevailing practice. It would then have been able to judge by the appropriate criterion whether defendant's shooting toward the high house in his zeal for a good score at the difficult No. 8 position was consistent with the due care required of one using a firearm. The prejudice of the misdirection of the jury under the circumstances is obvious. The fact that defendant was lawfully shooting at the time does not lessen the standard of care expected of him. In the Jensen case, supra, defendant was shooting at a bird in a strawberry patch on his farm, which also was a not unlawful activity. The law demands extreme caution on the part of one using firearms in the vicinity of others, regardless of how lawful or innocent such use may be. 56 Am.Jur., Weapons & Firearms, sec. 23, p. 1006.

The court also erred in refusing to instruct upon the doctrine of res ipsa loquitur. 'The doctrine of res ipsa loquitur has three conditions: '(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.'' Ybarra v. Spangard, 25 Cal.2d 486, 489, 154 P.2d 687, 689, 162 A.L.R. 1258. Condition 1 is clearly satisfied: 'Ordinarily, * * * accidents of this sort do not occur if those using firearms use due care.' Jensen v. Minard, 44 Cal.2d 325, 329, 282 P.2d 7, 9. Adverting to condition 2: That, too, is met because the gun was exclusively in defendant's control. This brings us to a consideration of the third element, namely, that the accident 'must not have been due to any voluntary action or contribution on the part of the plaintiff.' In explanation of this requirement, the court in Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 444, 247 P.2d 344, 348, makes the following clarifying statement: 'Some cases have stated that the accident must not have been due to any voluntary action or contribution on the part of the plaintiff. [Citations.] This is allied to the condition of control by the defendant and has also been employed as a means of showing that the defendant, rather than the plaintiff, had control and was responsible for the injury. [Citation.] It should not be confused with the problem of contributory negligence, as to which defendant has the burden of proof, and its purpose, like that of control by the defendant, is merely to assist the court in determining whether it is more probable than not that the defendant was responsible for the accident.' Here there was no activity on plaintiff's part which interfered with or impinged on defendant's exclusive control of the instrumentality causing the injury. The fact that he was engaged in reloading the trap machine within the cramped confines of the high house before he heard defendant's shot would be relevant in considering contributory negligence on his part, on which the jury was fully and correctly instructed, but it does not deprive him of the benefit of res ipsa loquitur. See Freitas v. Peerless Stages, Inc., 108 Cal.App.2d 749, 758, 239 P.2d 671, 33 A.L.R.2d 778. For, as the Zentz case emphasizes, that element should not be confused with the underlying issue, namely the applicability of res ipsa loquitur where the accident is of such a nature that it can be said it probably occurred as the result of negligence by someone and that defendant is probably the person responsible. 39 Cal.2d at pages 444, 446, 247 P.2d at pages 348, 349.

That this is such a situation is clear. In Jensen v. Minard, 44 Cal.2d 325, 329, 282 P.2d 7, a case in which defendant fired at a bird in a bush on his farm and the bullet struck plaintiff, the court held the doctrine applicable even though not requested. In Skinner v. Ochiltree, 148 Fla. 705, 5 So.2d 605, 140 A.L.R. 410, which involved a skeet shooter who fired his gun prematurely and injured plaintiff, who was employed in the high house as a loader, the court held it error to refuse an instruction on res ipsa loquitur. In Crump v. Browning, D.C.Mun.App., 110 A.2d 695, 696, 46 A.L.R.2d 1212, in considering an accidental shooting, the court addressed itself to the applicability of res ipsa loquitur as follows in reversing the lower court: 'It would be hard to imagine a situation more uniquely in the realm of res ipsa loquitur than this one. A man holds an automatic pistol in his hands, the pistol is discharged and wounds a friend. To say that res ipsa does not apply is to cast on the person shot the anamolous, if not impossible, burden of explaining how it happened.' This consideration is peculiarly applicable to the situation confronting us--where a person is injured by a gun in the hands of one having entire control over the aiming and firing of it. As was said in the Zentz case, supra, 39 Cal.2d at page 445, 247 P.2d at page 348, and quoted with approval in Seneris v. Haas, 45 Cal.2d 811, 825, 291 P.2d 915: 'Another factor which some of the cases have considered in applying the doctrine is that the defendant may have superior knowledge of what occurred and that the chief evidence of the cause of the accident may be accessible to the defendant but inaccessible to the plaintiff [citations].'

Considering the respective positions of the parties and mindful that ordinary care on defendant's part required the exercise of extreme caution, we have no doubt that the instruction on res ipsa loquitur was erroneously refused, whether viewed upon the theory (1) that defendant was negligent by reason of the manner in which he aimed and fired the gun, or (2) that the gun was unintentionally and accidentally discharged after the target came out broken. Particularly apposite is the observation in Stanford v. Richmond Chase Co., 43 Cal.2d 287, 292-293, 272 P.2d 764, 767, that 'it obviously seems more probable than not that a person standing in plaintiff's position would not have been struck by a fork lift if due care were used in its operation, and, therefore, under the doctrine of res ipsa loquitur, it can be inferred that the operator of the fork lift which struck plaintiff was negligent.' It may be said with equal validity that it is far more probable than not that a person situated as was Tommy would not have been wounded had defendant used extreme caution in the handling of his gun and the balance of probabilities in favor of defendant's negligence justified the invocation of the principle of res ipsa loquitur. The fact that defendant was on a shooting range did not diminish the standard of care required of one handling a gun. This duty was owed as much to Tommy as to the members of defendant's shooting party since all of them were within the foreseeable ambit of danger from a careless discharge of defendant's gun.

Defendant challenges the form of the requested instructions. However, one of the two proposed res ipsa instructions should have been given. That is the one taken from BAJI, 206-B. That instruction was recently approved by this court in Burger v. Burger, 136 Cal.App.2d 360, 364, 288 P.2d 926. That such an instruction is proper has been settled law at least since Burr v. Sherwin Williams Co., 42 Cal.2d 682, 691, 268 P.2d 1041. Since our foregoing discussion shows the unequivocal existence of the conditions upon which the operation of the doctrine is predicated, plaintiff was entitled to the instruction quoted in the precise form given.

It is clear that the foregoing errors in the instructions affected the very core of the instant case, and since it cannot be conscionably said that in the absence of such fundamental errors a different verdict would have been improbable, we must conclude that these errors constituted a miscarriage of justice within the import of the constitutional provisions and require a reversal. Daniels v. City and County of San Francisco, 40 Cal.2d 614, 624, 255 P.2d 785.

It may be useful, in the event of a new trial, to append a comment on another instruction given at defendant's request. It reads: 'You are instructed that it is the duty of an employer to furnish to his employees a safe place for them to work. You are further instructed that defendant, Philip Lombardo, if exercising ordinary care himself, was entitled to assume that plaintiff's employer had furnished to plaintiff a safe place within which to work and he could further assume that the plaintiff would reasonably use the protection afforded to him by the employer.' That instruction is palpably improper for several reasons. To begin with, it is not responsive to any issue in this case, for it has not been contended that plaintiff's employer failed to provide him with a safe place to work and that such failure, if any, was the sole proximate cause of plaintiff's injury. Furthermore, the duty to provide a safe place to work, which the instruction borrows from sections 6401 and 6402 of the Labor Code, is one owed by an employer to his employee. Those sections deal primarily with the relationship of employer and employee, Neuber v. Royal Realty Co., 86 Cal.App.2d 596, 619, 195 P.2d 501; Douglas v. Maloney, 105 Cal.App.2d 284, 286, 233 P.2d 59, the latter being a member of the class whose interests they were designed to protect. They cannot be used to insulate from liability a member of the public who owes an independent duty of care to such employee. A third party such as defendant, therefore, who was himself bound to exercise towards plaintiff great care, could not blindly assume that plaintiff had been made safe by some other person against direct fire from a shotgun.

The effect of the instruction was to inform the jury, categorically, that it was reasonable for defendant to assume that plaintiff's employer had provided plaintiff with a safe place to work, without qualification as to any knowledge defendant himself might have and regardless of the fact that defendant might be shooting squarely at a place in which he knew plaintiff to be. It completely removed from the jury the question of the reasonableness of the assumption that an independent obligation between plaintiff and his employer would not be violated, despite the fact that defendant himself was operating a dangerous instrumentality, fraught with peril toward plaintiff unless extreme caution were employed. The general principle relied on by defendant in support of the instruction that one has a right to assume that another will obey the law was not only inapplicable in the context here present, but contains a significant qualification. 'It is only when there is nothing in the situation to warn him of impending danger that he is not guilty of negligence in relying upon such assumption. The reasonableness of the conduct of a person relying upon the assumption that another will obey the law is primarily a question for determination by the trier of fact [citations].' Shiya v. Reviea, 122 Cal.App.2d 155, 163, 264 P.2d 190, 196. Under the instruction, the court told the jury that as a matter of fact defendant 'was entitled to assume that plaintiff's employer had furnished to plaintiff a safe place within which to work.' For the various reasons stated, the instruction should not have been given.

The parties have also argued the propriety of giving instructions on assumption of risk. We need not extend this opinion by a consideration of this issue, since much will depend on the manner in which the facts are developed on a retrial. We cannot foretell what will be adduced in this connection upon retrial and we refrain from anticipatory expression.

The judgment is reversed.

MOORE, P. J., concurs.

ASHBURN, Justice (dissenting).

Reluctantly I feel constrained to voice a dissent in this case. The jury found unanimously for defendant, the trial judge immediately expressed approval of the verdict and later denied a motion for new trial which was based upon alleged insufficiency of the evidence as well as other grounds. I dissent because the prevailing opinion reversing the judgment appears to me to work a miscarriage of justice.

No claim of insufficiency of the evidence is made on this appeal and the reversal is based upon the conclusion that grievous error was committed in the giving of certain instructions and the refusal of others. This posture of the case requires that the evidence be viewed from two angeles, (1) the findings which the jury and trial judge inferentially made, and (2) any theory advanced by plaintiff which is supported by substantial evidence.

Defendant Lombardo visited the Dominguez Skeet Range for the purpose of skeet shooting, paying the operator for the privilege of so doing. A duty of exercising reasonable care to have the skeet range in safe condition was owed to him, McCordic v. Crawford, 23 Cal.2d 1, 6, 142 P.2d 7, and the furnishing of a reasonably safe place to work was due the operator's employees. 16 Cal.Jur. § 21, p. 995; Powell v. Jones, 133 Cal.App.2d 601, 606, 284 P.2d 856. Defendant, in the exercise of ordinary care, was entitled to rely upon the assumption that the operator of the range had obeyed the law and exercised reasonable care toward him and toward persons working on the range,--a right to so rely until apprised of the contrary by circumstances which would alert a reasonably prudent man to the fact that the contrary was the case. 'It is axiomatic that in the absence of conduct to put him on notice to the contrary a person is entitled to assume that others will not act negligently or unlawfully.' Porter v. California Jockey Club, Inc., 134 Cal.App.2d 158, 160, 285 P.2d 60, 61. In Leo v. Dunham, 41 Cal.2d 712, 715, 264 P.2d 1, 3, the court quotes from Harris v. Johnson, 174 Cal. 55, 58, 161 P. 1155, L.R.A. 1917C, 477, as follows: "The general rule is that every person has a right to presume that every other person will perform his duty and obey the law, and in the absence of reasonable ground to think otherwise it is not negligence to assume that he is not exposed to danger which comes to him only from violation of law or duty by such other person." Shivers v. Van Loben Sels, 109 Cal.App.2d 286, 289, 240 P.2d 635, 637: 'White was driving his equipment at a lawful rate of speed. The brakes on his equipment were in good condition. He knew he was traveling on a through highway protected by stop signs. Under these circumstances, he had a right to assume that a driver on a street intersecting the through highway would obey the stop signs and yield the right of way. In making such assumption, White was acting wholly within his rights, and he cannot be charged with negligence in acting thereon. He can only be charged with negligence under such circumstances from the time he had knowledge, or in the exercise of ordinary care should have known, that the Pontiac was going to disregard the stop sign and enter the highway. After such knowledge, he was bound to use the care of an ordinary prudent person. [Citing cases.] Whether a person exercises the required degree of care is ordinarily one for the jury.' Hendricks v. Pappas, 82 Cal.App.2d 774, 778, 187 P.2d 436, 438, points out that: "Whether or not reasonable care is used under the circumstances, in relying upon this presumption, is a question for the jury."

This initial right to assume that others have exercised due care and to continue to do so until alerted to the contrary applies to those who are charged with the exercise of the highest degree of care as well as those owing only ordinary care. Connor v. Pacific Greyhound Lines, 104 Cal.App.2d 746, 753, 232 P.2d 500; Merritt v. Interstate Transit Lines, 8 Cir., 171 F.2d 605, 608-609.

Defendant therefore rightly entered upon the shoot assuming that the operator of the range had fulfilled his duty to his own participating employees, as well as to patrons engaged in shooting. That frame of mind gave rise to no duty of defendant to protect plaintiff in performing his work as loader of the trap machine.

'It is an elementary principle that an indispensable factor to liability founded upon negligence is the existence of a duty of care owed by the alleged wrongdoer to the person injured, or to a class of which he is a member.' Routh v. Quinn, 20 Cal.2d 488, 491, 127 P.2d 1, 3, 149 A.L.R. 215. This fundamental proposition is not confined to statutory duties; it applies also to those arising from the common law. This is shown by the opinion in Richards v. Stanley, 43 Cal.2d 60, 63, 271 P.2d 23, and many other rulings exemplified by Gleason v. Fire Protection Engineering Co., 127 Cal.App. 754, 757, 16 P.2d 750; Neuber v. Royal Realty Co., 86 Cal.App.2d 596, 611-612, 195 P.2d 501. See also, 38 Am.Jur. § 12, p. 652; 65 C.J.S., Negligence, § 4, p. 332, § 4 c, p. 347, § 5 a, p. 350, § 5 c(2), p. 354. The ultimate question of whether any duty exists with respect to a given person or situation depends upon the foreseeability of probable or possible injury from the conduct of one charged with negligence. 65 C.J.S., Negligence, § 5 c(2)(a), p. 354: 'Negligence is, or may be, gauged by the ability to anticipate danger. Accordingly, reasonable foresight of harm is essential to the concept of negligence, and supplies the criterion for determining whether it exists in a particular case, and reasonable foreseeability of harm is the fundamental basis of the law of negligence. * * * On the other hand, one is not bound to foresee every possible injury which might occur, or every possible eventuality, but only those which were reasonably foreseeable; and one is not required to anticipate against dangers which it is not his duty to avoid.' Moreover, the foreseeability which creates a duty in favor of a specific person must relate to the risk of injury to him and not someone else. That is the doctrine of the Routh and Richards cases, supra. The proposition is supported by numerous authorities. See Johnson v. Union Furniture Co., 31 Cal.App.2d 234, 238, 84 P.2d 917; West v. Cruz, 75 Ariz. 13, 251 P.2d 311, 314; American Lumber Sales Co. v. Fidelity Trust Co., 127 Me. 65, 141 A. 102, 105; Moen v. Madison Rys. Co., 199 Wis. 168, 225 N.W. 821, 822; Kapphahn v. Martin Hotel Co., 230 Iowa 739, 298 N.W. 901, 906; Hale v. Cooper, 271 Mich. 348, 261 N.W. 54, 57, 263 N.W. 769; 38 Am.Jur. § 18, p. 660; Harper v. Remington Arms Co., Inc., 156 Misc. 53, 280 N.Y.S. 862; Campbell v. Cunningham Natural Gas Corp., 164 Misc. 1, 298 N.Y.S. 200; Jefferson v. Young Men's Christian Ass'n, 354 Pa. 563, 47 A.2d 653; Rue v. Wendland, 226 Minn. 449, 33 N.W.2d 593; Eckenrode v. Pennsylvania R. Co., 3 Cir., 164 F.2d 996; Miller v. El Mirasol, Inc., 163 Misc. 346, 297 N.Y.S. 380.

In the leading case of Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253, a passenger who was running to catch a train of defendant was assisted by its servants; in the process a package fell from his arms upon the rails; it contained fireworks which exploded with violence and the concussion overturned some scales many feet away and they fell upon plaintiff who was standing on the platform; she was injured thereby. It was held that the defendant was not liable because its servants could not have foreseen harm to her from the package. Mr. Justice Cardozo used the following language, 162 N.E. at pages 99-100: 'The conduct of the defendant's guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. 'Proof of negligence in the air, so to speak, will not do.' * * * If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward seeming, with reference to her, did not take to itself the quality of a tort because it happened to be a wrong, though apparently not one involving the risk of bodily insecurity, with reference to some one else. 'In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury.' * * * the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. * * * We are told that one who drives at reckless speed through a crowded city street is guilty of a negligent act and therefore of a wrongful one, irrespective of the consequences. Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of vigilance perceives the risk of damage. If the same act were to be committed on a speedway or a race course, it would lose its wrongful quality. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.' (Emphasis added.) The concurring opinion of Mr. Justice Traynor in Mosley v. Arden Farms Co., 26 Cal.2d 213, at page 220, 157 P.2d 372, at page 376, 158 A.L.R. 872 adopts the Palsgraf doctrine, saying: 'It remains to determine only whether the harm falls within the limits of defendant's legal responsibility for the consequences of its conduct. In my opinion that determination is made once it is established that defendant's conduct was or was not wrongful with respect to the plaintiff; for the risk reasonably to be foreseen not only creates the liability but defines its limits.' The Palsgraf case and numerous other authorities are cited in support of the proposition. The Restatement of the Law of Torts reflects the same view in § 281. Comment c on clause (b) at page 735 says: 'Risk to class of which plaintiff is member. If the actor's conduct creates a recognizable risk of harm only to a particular class of persons, the fact that it causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not render the actor liable to the persons so injured.' The opinion in Richards v. Stanley, supra, 43 Cal.2d 60, 63, 271 P.2d 23, cites with approval and applies the rule stated in Restatement, § 281, and in comments c, e and g thereto. The Palsgraf doctrine plainly prevails in this state.

The case at bar is not that of a spectator who was injured, as in Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 282 P.2d 12, but is a parallel to Mr. Justice Cardozo's example of a high rate of speed which is wrongful on the city street but loses that quality when occurring on a speedway or race course.

Defendant had shot at the Dominguez range on one or two previous occasions; he had never been in the high house or looked inside; he realized that some person was there but did not know it was a 13 year old boy; he saw the necessary opening for passage of the targets and the shields placed below and on one side of it; he did not know whether they were adjustable, nor did he know whether the operator wore a face mask or other protective covering or what other precautions had been taken to protect him from injury. Defendant did not know these things and he had no duty to investigate. There was nothing to suggest to his mind that he should not shoot in accordance with the rules and prevailing practices of skeet shoots.

Station number eight was about 60 feet directly east from the high house. The breaking point (east of which the bird could not be shot) was immediately north of station eight and only 18 feet distant. The bird when ejected from the machine traveled at 60 miles an hour or 90 feet a second, a distance of approximately 67 feet to the breaking point; hence the shooter had less than a second, about two-thirds of one, in which to make a score by hitting the target. Mr. Alex Kerr, a well-qualified expert, testified without contradiction as to the rules, practices and customs of skeet shooting. Indeed, appellant's briefs are built upon the assumption that his testimony is correct. He explained that, because the difficulty of a shot from station eight steadily increases as the bird reaches the breaking point, it is customary and in accordance with nationally recognized rules for the sportsman to fire immediately upon the emergence of the bird from the high house, his gun being pointed at that house. The photographs of that structure support the inference that such was the practice on this range; they bear the marks of having been peppered by innumerable gunshots.

There is another practical consideration which enters into the custom of firing straight at the house. The circular pattern of a shot discharged from this shotgun has a diameter of 30 inches whey 75 feet from the gun. In this instance the distance was 60 feet and the diameter of the pattern slightly less, say 25 inches at that distance. If the gun is to be shifted so that none of the pattern of shot will hit the house there is an immediate loss of over 25 inches out of a total 67-inch firing distance, with the shot becoming more difficult all the time. The practical thing to do, the one that is actually done, is to fire immediately upon seeing the bird emerge.

The jury and the trial judge gave credence to defendant's version of the accident. He said that he took the firing position at station eight, called 'pull' (the signal for the boy in the control house to electrically spring the trap in the high house), waited for the target, saw it emerge unbroken from the aperture and shot when it was about two feet from the high house; that he hit '[I]f it is of any comfort to you, I would him come out of the high house. The implied findings of jury and trial judge that this version of the accident is correct leave no room for any inference of negligence on defendant's part. The basic reason is that defendant did exactly what he was supposed to do and therein had violated no duty that he owed to plaintiff. When the verdict was brought in the trial judge said, in part: it, shortly heard plaintiff 'holler' and saw say that I would determine it [the case] in the same way. * * * It is a sad, sad case, * * * but to say that it is the fault of the one who is shooting on the range, to me, seems to be going too far.'

This is the background against which the propriety of requested instructions and the claim of prejudicial error in those given must be considered if error be found in any of the rulings about which plaintiff complains. However, the question of whether there was such error must also be tested in the light of any substantial evidence, positive or negative, supporting plaintiff's theories. See Gilbert v. Pessin Grocery Co., 132 Cal.App.2d 212, 222, 282 P.2d 148, and cases therein cited.

The evidence upon which plaintiff relies is sufficiently substantial to sustain a verdict based upon an accidental firing of defendant's gun had such a finding been made. Mrs. Elva Ruth, who worked in the office, testified that about a half hour after the accident she asked defendant, 'How in the world could it ever have happened?' and that he said he did not know, 'He guessed his gun was discharged accidentally.' The admission of a party is independent and affirmative evidence of the fact admitted by him. Crawford v. Alioto, 105 Cal.App.2d 45, 50, 233 P.2d 148; Bonebrake v. McCormick, 35 Cal.2d 16, 18-19, 215 P.2d 728. Gerald L. Bayless, the 'trap puller' in the control house, testified that when defendant called 'pull' he was at the 'ready position,' meaning that the barrel of the gun was up in the air and the stalk down at the hip; that when the witness pressed the button the bird came out 'busted' in several little pieces. (It is optional with the shooter to fire at a broken target if it is not in little pieces; such was the Kerr testimony.) Bayless said that when he saw the bird was broken he looked at Lombardo who was 'just bringing the gun down from his shoulder from the firing position,' that he did not see the gun but heard it go off; that the barrel was right in front of defendant's face and the stalk coming down to 'ready position;' that he was scoring and marked a miss against Lombardo on that station. Defense witness Henry L. Lewis, who was shooting with defendant, said he was watching for the bird and saw pieces of broken target coming out of the high house and that simultaneously he heard a shot. In the aggregate this evidence would sustain a finding of an accidental and unintended firing of the gun.

Plaintiff complains of refusal of his requested res ipsa loquitur instructions, relying principally upon Jensen v. Minard, 44 Cal.2d 325, 282 P.2d 7, a firearm case wherein res ipsa was held applicable. That was the bird shooting case mentioned in the prevailing opinion. But the situation at bar is substantially different. There was no dispute in that case about what happened and the court was passing upon the pertinence of the doctrine rather than the form of an appropriate instruction. In the instant case the rule would not be applicable to the factual situation depicted by defendant and impliedly accepted by the jury and the trial judge. This follows from the above discussion which shows that there was no negligence on defendant's part under such circumstances, or at least that the jury and judge were justified in so finding. It was held in La Porte v. Houston, 33 Cal.2d 167, 169, 199 P.2d 655, and Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 442, 247 P.2d 344, 347, that "the applicability of the doctrine of res ipsa loquitur depends on whether it can be said, in the light of common experience, that the accident was more likely than not the result of their defendants') negligence. (Citations.) 'Where no such balance of probabilities in favor of negligence can be found, res ipsa loquitur does not apply."' But if plaintiff's contention be accepted to the effect that the discharge of the gun was unintentional, that would give rise to a res ipsa inference under such cases as Jensen v. Minard, supra, and Skinner v. Ochiltree, 148 Fla. 705, 5 So.2d 605, 140 A.L.R. 410. This is on the theory that an accidental firing may be a violation of a general duty owing to all within range of danger to exercise extreme caution in handling firearms. Contrasted with this is the absence of any duty to protect the operator in the high house from the normal hazards of ordinary skeet shooting. The state of the evidence in this case is such that it should have been left to the jury (if proper instructions were requested) to determine the facts which would render res ipsa applicable or inapplicable. Seneris v. Haas, 45 Cal.2d 811, 827, 291 P.2d 915, 924: 'The existence of the conditions upon which the operation of the doctrine is to be predicated is a question of fact and the right of the jury to find those facts must be carefully preserved.'

Plaintiff's requests, if given, would have invaded the province of the jury for they state without qualification that the rule does apply to this case. There are two of them, one begins with this declaration: 'You are instructed that this is a case in which the doctrine of res ipsa loquitur, that is to say, the thing speaks for itself, is applicable. * * *' The other says: 'From the happening of the accident to the plaintiff Thurman Tucker, Jr., as established by the evidence, there arises an inference that the proximate cause of his injury was some negligent conduct on the part of the defendant. * * *' Both were properly refused, and Burger v. Burger, 136 Cal.App.2d 360, 288 P.2d 926, does not hold otherwise, nor does Burr v. Sherwin Williams Co., 42 Cal.2d 682, 691, 268 P.2d 1041. There was no duty resting on the trial judge to modify these requests and give the instructions as modified. Sloan v. Stearns, 137 Cal.App.2d 289, 290 P.2d 382; Austin v. Riverside Portland Cement Co., 44 Cal.2d 225, 235, 282 P.2d 69; Tossman v. Newman, 37 Cal.2d 522, 525, 233 P.2d 1. The Jensen case, supra, 44 Cal.2d 325, 282 P.2d 7, does not hold the contrary with respect to a situation such as shown at bar, and this is not a case in which the jurors were left without guidance upon the vital issue or issues of the case.

Appellant complains of the instruction first quoted in the prevailing opinion. There is no contention that this instruction does not square with the Jensen decision except in the use of the word 'may' rather than 'must' in these phrases: 'the quantum or amount of care exercised may be greater than would be necessary if he was not handling a loaded weapon;' 'where the danger of injury is greater the amount of care to be used may be great.' Assuming that the word 'must' should have been used, it does not appear that the jurors were likely to be misled by the word 'may.' The interchangeable use of those words is so common that it cannot be said that anyone is likely to be misled thereby. Moreover, this was but one of a series of instructions to the effect that the amount of care to be exercised increases with the foreseeable danger. Witkin California Procedure, at page 1800, says: 'The underlying principle is that, under the constitutional prohibition against reversal for nonprejudicial error, it must be shown that the error was likely to mislead the jury. If this does not affirmatively appear, there is no reversible error.' 'In considering an instruction assigned as prejudicial the reviewing court must adopt such construction thereof as will support the judgment rather than one that will defeat it, if the one adopted is susceptible of such interpretation. Mullanix v. Basich, 67 Cal.App.2d 675, 681, 155 P.2d 130.' Perbost v. San Marino Hall-School, 88 Cal.App.2d 796, 801, 199 P.2d 701, 703.

Moreover, appellant is precluded from urging error in this instruction for it was his duty to propose further and more specific instructions on the subject if he deemed this one to be inadequate or incorrect in any particular. Smith v. Pacific Greyhound Corp., 139 Cal.App. 696, 705, 35 P.2d 169; Ohran v. County of Yolo, 40 cal.App.2d 298, 307, 104 P.2d 700; State Rubbish Collectors Ass'n v. Siliznoff, 38 Cal.2d 330, 340, 240 P.2d 282. Plaintiff did in fact propose instructions upon the subject. But they were erroneous because they attempted to place the burden of proof upon defendant to show that he was not negligent. Such instructions were held to be erroneous in the Jensen case, supra. Counsel argue as if they had proposed instructions such as the one found in the Jensen case [44 Cal.2d at page 328, 282 P.2d at page 8] concerning extreme caution, but there was no such request at bar.

Finally, it does not appear that a different verdict would have been probable if the alleged error had not entered into this instruction. The jury and trial judge accepted defendant's version of the facts and that gave rise to no duty on defendant's part to exercise care for plaintiff's safety; the jurors' common sense told them there was no negligence there. And from that standpoint the instruction given was more favorable than plaintiff was entitled to have.

Appellant asserts error in giving an instruction on unavoidable accident, but he cannot complain because he requested it. 'A party may not complain of error in an instruction given at his own request. Yolo Water & Power Co. v. Hudson, 182 Cal. 48, 51, 186 P. 772. In the instant case the record discloses that both plaintiff and defendant requested the foregoing instruction. Therefore this rule is applicable and plaintiff may not allege error in the giving thereof.' Bivens v. Haber, 105 Cal.App.2d 628, 629, 233 P.2d 923. The trouble with the two instructions given in the Jensen case, supra, to the effect that no inference of negligence arose from the mere fact of the accident and concerning unavoidable accidents, is that the rule of res ipsa loquitur there applied, thus rendering the no inference instruction inapplicable and erroneous, while the unavoidable accident instruction created a conflict with the one pertaining to res ipsa. The instant situation is not comparable.

At defendant's request the court gave this instruction: 'The mere fact that an accident happened, considered alone, does not support an inference that some person, or any party to this action was negligent.' Appellant says this was error. That does not appear to be the case, for the instruction is confined to the fact of the accident considered alone. This means the fact that plaintiff was shot. In order to raise an inference of negligence it is necessary to know more about the circumstances of the accident. If the shooting was accidental then an inference of negligence would arise, but if it occurred in the manner explained by defendant, no such inference could be drawn. The mere fact of the accident was not enough to raise an inference either way. If it were concluded that this instruction was erroneous it could not in my judgment be held to have worked a miscarriage of justice.

Appellant claims that there was error in the refusing of instructions on contributory negligence. These requests declared as a matter of law that plaintiff was not guilty of contributory negligence. Hudson v. Rainville, 46 Cal.2d 474, 297 P.2d 434, 436: 'The rule is accurately stated by Mr. Justice Schauer in Gray v. Brinkerhoff, 41 Cal.2d 180, at page 183, 258 P.2d 834, 836, thus: 'Whether or not defendant was guilty of negligence (citing cases) or plaintiff was guilty of contributory negligence (citing cases) is ordinarily a question of mixed fact and law and may be determined as a matter of law only if reasonable men following the law can draw but one conclusion from the evidence presented (citing cases).'' The evidence at bar was such that the question was properly left to the jury and there is no discernible error in the instructions which were actually given on that subject.

Likewise, there was no error in leaving to the jury the question of assumption of risk. The evidence affords solid basis for such a ruling.

There was no error in the instruction quoted in the majority opinion which begins with the words "You are instructed that it is the duty of an employer to furnish to his employees a safe place for them to work." That part of the instruction merely pointed to one of the bases for defendant's right to assume that the operator of the range had exercised due care, both with respect to himself and those with whom he had to deal while a paying guest on those premises. There was no likelihood of the jury being misled by the instruction, nor was it intrinsically erroneous.

There was no error in receiving evidence of the rules, practices and customs of skeet shooting. They have a direct bearing on the question of negligence though they do not of themselves establish the standard of prudent conduct. Burke v. John E. Marshall, Inc., 42 Cal.App.2d 195, 203-204, 108 P.2d 738; Fowler v. Key System Transit Lines, 37 Cal.2d 65, 230 P.2d 339; Hargrave v. Acme Tool & Tester Co., 125 Cal.App.2d 34, 39, 269 P.2d 913; Miller v. Midway Fishing Tool Co., 106 Cal.App.2d 612, 235 P.2d 630.

The judgment herein should be affirmed. --------------- * Opinion vacated 303 P.2d 1041. 1 The requested instruction reads: 'From the happening of the accident to the plaintiff Thurman Tucker, Jr., as established by the evidence, there arises an inference that the proximate cause of his injury was some negligent conduct on the part of the defendant. That inference is a form of evidence, and if there is none other tending to overthrow it, or if the inference preponderates over contrary evidence, it warrants a verdict for the plaintiffs. Therefore, you should weigh any evidence tending to overcome that inference, bearing in mind that it is incumbent upon the defendant to rebut the inference by showing that he did, in fact, exercise ordinary care and diligence or that the accident occurred without being proximately caused by any failure of duty upon his part.' 1 "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." 2 'Negligence is not an absolute term, but a relative one. By this we mean 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 as shown by the evidence.' 'Inasmuch as the amount of caution used by the ordinarily prudent person varies in direct proportion to the danger known to be involved in his undertaking, it follows that in the exercise of ordinary care, the amount of caution required will vary in accordance with the nature of the act and the surrounding circumstances. To put the matter in another way, the amount of caution involved in the exercise of ordinary care increases or decreases as does the danger that reasonably should be apprehended.' 3 'In applying the standards of ordinary care and negligence which I have given you to the acts of the defendant in this case, I instruct you that as firearms are extraordinarily dangerous, the defendant in the use and handling of the shotgun he had in his possession on the day that the plaintiff Tommy Tucker was hit, was bound to use extraordinary care to prevent injury to Tommy Tucker and all other persons. If you find that plaintiff Tommy Tucker was injured through the discharge of the shotgun the defendant had in his possession, then the defendant must show that he was absolutely without fault, and if he does not show that he was absolutely without fault, you must find him guilty of negligence.' 'You are instructed that if a person is injured by the discharge of a gun in the hands of another who has entire control of it, the burden is cast upon the latter to prove that the gun was not fired at the party injured either intentionally or negligently, but the result was inevitable and without the least fault upon the part of the one handling the gun.'