JENSEN v. MINARD

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District Court of Appeal, Third District, California.

JENSEN et al. v. MINARD.*

Civ. 8385.

Decided: June 22, 1954

Vernon F. Gant, Modesto, for appellants. David F. Bush of Bush, Ackley & Milich, Oakdale, for respondent.

This is an appeal from a judgment entered upon a defense verdict returned by a jury in an action for wrongful death brought by the parents and minor sister of twelve-year-old Bonnie Jensen who was struck by a bullet from respondent's rifle on the afternoon of May 21, 1951. Appellants have also appealed from the order denying their motion for a new trial.

Appellants' first contention is that the evidence is insufficient to justify the verdict and that it is against law. Before proceeding to discuss this contention we shall quote the well settled rule so aptly expressed in Juchert v. California Water Service Co., 16 Cal.2d 500, at page 503, 106 P.2d 886, at page 888, as follows:

‘As is always true on such appeals, all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences must be indulged in to uphold the verdict, if possible. It is elementary that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. And when two or more inferences can reasonably be deduced from the facts, the reviewing court is without power to substitute its deductions for those of the jury or trial court. (Citing cases.)’

Bearing this familiar rule in mind, we shall summarize briefly the factual situation as shown by the record.

Defendant Minard owned and operated a dairy farm near Oakdale, California, at the intersection of the Sierra Road, running east and west, and the Wren Road, which runs south from the Sierra Road to the Jensen home. His house faced the Wren Road. Some 60 feet to the northeast from the concrete porch of the Minard home, and between it and the Wren Road, was a small strawberry bed. Defendant testified that the soil in this bed was a ‘fairly heavy, sandy loam’ and that ‘there might have been a little pebble here and there, but not many.’ Behind the strawberry bed was a panel fence, and angling behind this fence towards the southeast was an irrigation canal with banks approximately five feet high. There was a bridge where this canal crossed the Wren Road, considerably south and east of the strawberry bed.

On the afternoon of May 21, 1951, according to defendant's testimony, he and a friend named Kreitzer were sitting on the front porch of the Minard house. Defendant had a .22 rifle with him, and on two occasions he had stood up and fired into the strawberry bed at birds which lit there to feed on the ripe berries, using Peters .22 short high velocity cartridges.

About 4:10 p. m. the two Jensen girls, Bonnie and Carolyn, got off the school bus at the intersection of the Sierra and Wren Roads, and started down the Wren Road towards their home. Defendant saw them get off the bus and watched them walk down the road to the bridge over the canal and then on southward along the road until they were lost from his view. Some little time afterwards a small bird flew into the strawberry bed and lit there. Defendant stood up and fired at the bird on the ground in the strawberry bed. Before he did this, he looked up and down Wren Road ‘to see if the children were there,’ and also into the field beyond. The Jensen girls were in fact clear out of his sight down the road south of the bridge over the canal. His line of fire was considerably north of the bridge. Bonnie, who with her younger sister was walking along the road, was struck in the side of the head with the bullet. The spot where she was hit was about 200 yards from the point where defendant was standing when he fired at the bird in the strawberry bed and about 180 feet to the south of his line of fire.

After he shot, defendant went back to his chair and sat down. Then he heard a scream. He started running towards the sound. He testified that the possibility that he might have hit one of the little girls never even entered his mind. He thought his Guernsey bull had got loose and had molested or scared the little girls. He found Bonnie lying on her side badly hurt. He and Kreitzer rushed her to Oakdale, where she died that evening.

Dr. J. K. Ransom, County Coroner, testified that he performed an autopsy and found a bullet just under the skin in front of the ear which had pierced both sides of the skull and come to rest just under the skin. The path of the bullet was downward and forward.

George W. Lacy, a forensic chemist, employed by the Los Angeles County Sheriff's Department as Director of the Crime Laboratory, was called as a witness by plaintiffs and testified that he examined the bullet; that it was not mutilated to any extent and had no foreign substance on it other than human blood and flesh. He expressed the opinion that the bullet had not ricocheted. He further testified that a bullet of the type involved fired from a .22 calibre high velocity cartridge would drop 28 inches in 200 yards. However, the witness Lacy stated, when cross-examined, that he made ‘principally a microscopic examination of the bullet,’ and that he made no actual tests with the rifle at all.

Dr. Paul L. Kirk, Professor of Biochemistry and Criminalistics at the University of California, called as an expert witness by defendant, after making various tests, including firing the rifle some 20 times with similar ammunition to observe the effect of ricochets from the earth on the bullets, and then comparing them with the fatal bullet, ‘concluded that the markings were so similar that the fatal bullet very definitely could have ricocheted from the soil.’ He admitted that he could not state positively that the bullet did ricochet but believed it did since the markings and effects were such as he got from a ricochet bullet. He was of the further opinion that the contact of the bullet with the soil in the strawberry bed could have deflected its course sharply to the right and with sufficient force to carry it to the spot where it struck Bonnie Jensen. However, he admitted that this was merely possible and not probable and that the chances of such an unexpected occurrence were one in ten million.

Appellants contend with great earnestness that it must be held as a matter of law that the evidence is insufficient to support the implied finding of the jury that respondent was not negligent. They cite the following annotation from 53 A.L.R. at page 1205:

‘One who has in his possession, or under his control, an instrumentality exceptionally dangerous in character, is bound to take exceptional precautions to prevent an injury being done thereby. A higher degree of care and vigilance is required in dealing with a dangerous agency than in the ordinary affairs of life or business, which involve little or no risk of injury to person or property. While no absolute standard of duty in dealing with such agencies can be prescribed, it is safe to say, in general terms, that every reasonable precaution suggested by experience and the known dangers of the subject ought to be taken. The test of liability is the power of a prudent person to foresee injury; and this question, of course, depends on the particular circumstances of the case, including the nature of the instrumentality, the time, the place and the status of the person injured.’

Appellants also rely heavily upon Rudd v. Byrnes, 156 Cal. 636, 105 P. 957, 26 L.R.A.,N.S., 134. In that case it appeared from plaintiff's testimony that on October 10, 1905, he, in company with the defendant and one Lima, went out along the Big River in Mendocino County to hunt deer. On the north bank of the river they parted company. Byrnes and Lima remained on the north side. The plaintiff, Rudd, crossed the stream, taking a dog with him. The dog started along a ridge and down through the brush into a flat across the river from Byrnes. Rudd thought the dog was after a deer, and ran in after. When he came out on the flat opposite Byrnes he heard a shot and was struck by a bullet. There was no question of the fact that Byrnes fired this shot. His own testimony was that he saw an object moving in the brush, and fired at it, thinking it to be a deer. It was testified that the three hunters had agreed that they were, resectively, to station themselves at three crossings, Byrnes' station being about 200 yards above and Rudd's about the same distance below that of Lima. When Byrnes fired he was at the point at which, under the agreement, he should have been. Rudd, instead of going down the river, as agreed, went up, and was opposite Byrnes' station when shot. The trial court instructed the jury that plaintiff was entitled to a verdict and that the only question for the jury was the amount of damages. The court refused to submit the issue of contributory negligence to the jury. Upon appeal after a judgment in favor of plaintiff, the Supreme Court held that the trial court erred in not submitting the issue of contributory negligence to the jury. In the course of its opinion the court said at page 640 of 156 Cal., at page 959 of 105 P.:

‘* * * That the defendant's conduct was negligent may well be conceded. ‘As firearms are extra ordinarily dangerous, a person who handles such a weapon is bound to use extraordinary care to prevent injury to others, and is held to strict accountability for a want of such care.’ 12 Am. & Eng.Ency. of Law (2d Ed.) [p.] 518; Bahel v. Manning, 112 Mich. 24, 70 N.W. 327, 36 L.R.A. 523, 67 Am.St.Rep. 381; Judd v. Ballard, 66 Vt. 668, 30 A. 96; Moebus v. Becker, 46 N.J.L. 41; Morgan v. Cox, 22 Mo. 373, 66 Am.Dec. 623. One who causes injury to another by discharging a firearm must, in order to excuse himself from liability, show that he was absolutely without fault. 12 Am. & Eng.Ency. of Law (2d Ed.) [p.] 519; Bahel v. Manning [112 Mich. 24 (70 N.W. 327, 36 L.R.A. 523, 67 Am.St.Rep. 381)]; Morgan v. Cox [22 Mo. 373 (66 Am.Dec. 623)]; Tally v. Ayers, 3 Sneed (Tenn.) 677; Wright v. Clark, 50 Vt. 130, 28 Am.Rep. 496. While the question of negligence is ordinarily one to be determined by the jury, yet where the facts are undisputed, and no inference but that of negligence can be drawn from them, the court may determine that negligence is shown as matter of law. Studer v. Southern Pacific Co., 121 Cal. 400, 53 P. 942, 66 Am.St.Rep. 39; Nagle v. California South R. Co., 88 Cal. 86, 25 P. 1106. It is plain, from defendant's own story, that he did not, in this instance, exercise the care required of one handling firearms. He saw an object moving in the underbrush, and fired at it without taking time to discover whether it was a deer, as he supposed it to be, or a human being. There can be no room for doubt that, in so doing, he acted without that regard for the safety of others which is to be expected of one handling dangerous implements or substances.'

We do not believe that Rudd v. Byrnes or any of the other authorities cited by appellants establishes a standard which would impose liability upon appellant in the instant case as a matter of law. The facts in the Rudd case are clearly distinguishable. There the defendant fired at an object moving in the brush without first determining whether or not it was an animal or another hunter. He intended his bullet to go where he aimed. There was no unexpected ricocheting of the bullet as is claimed in the instant case. Furthermore, as stated by the court on page 640 of 156 Cal., on page 959 of 105 P., it is only ‘where the facts are undisputed, and no inference but that of negligence can be drawn from them’ that a court can determine that negligence is shown as a matter of law.

While it is, of course, true that the standard of care required of one handling firearms is and should be very high because a firearm is a dangerous instrumentality, yet the test of liability as stated in the quotation by appellants from 53 A.L.R. supra, ‘is the power of a prudent person to foresee injury; and this question, of course, depends on the particular circumstances of the case.’

We believe that it was for the jury to resolve the conflicts in the experts' testimony and to determine from all the evidence and the inferences to be drawn therefrom how and in what manner this unfortunate accident happened. We cannot hold as a matter of law that the evidence was insufficient to warrant the jury in finding that the respondent aimed his shot at the strawberry patch and that he was not negligent in so doing or in failing to foresee that there was one possibility in ten million that the bullet might ricochet. Respondent was not chargeable, as a matter of law, with knowledge that such a highly unlikely result could possibly ensue. Cleghorn v. Thompson, 62 Kan. 727, 64 P. 605, 54 L.R.A. 402. We cannot hold that the evidence is wholly insufficient to support the jury's implied finding that respondent exercised that high degree of care which was required under the circumstances.

Appellants have made an able and earnest argument, but in view of the conflict in the evidence, and in the inferences which may reasonably be drawn therefrom, we cannot, as an appellate tribunal, substitute our deductions for those of the jury and the trial court. It was for the jury in the first instance to weigh the evidence, and it was for the trial court to grant appellants' motion for a new trial if the trial court considered the verdict against the weight of the evidence. The trial judge has the power to weigh the evidence upon a motion for a new trial and to grant a new trial notwithstanding a conflict in the evidence if he is convinced the verdict is clearly against the weight of the evidence (a power which an appellate court does not possess), and in the instant case appellants' motion for a new trial was denied.

Appellants next contend that the court committed prejudicial error in refusing to give to the jury the following instruction offered by them:

‘One who causes injury to another by discharging a firearm must, in order to excuse himself from liability show that he was absolutely without fault.’

The language of this instruction is taken verbatim from the opinion in Rudd v. Byrnes, supra. However, in the instant case the court at appellants' request did instruct the jury that

‘* * * firearms are extraordinarily dangerous and a person who handles such a weapon is bound to use extraordinary care to prevent injury to others, and is held to strict accountability for a want of such care.’

Also:

‘What ordinary care is in any particular case depends upon what the circumstances are. Here the defendant was firing a gun which is an extremely dangerous activity. Ordinary care while firing a gun demands that the person firing the gun must exercise extreme caution while so doing. If you find that the defendant did not use extreme caution, then you must find that he was negligent.’

Thus, the jury was correctly advised that respondent was required to exercise that degree of care commensurate with and in proportion to the danger involved. There was no error in refusing to instruct that he must ‘show that he was absolutely without fault.’ If the jury had found that respondent failed to use ‘extraordinary care’ and ‘extreme caution,’ under the instructions given, they were compelled to find that he had not excused himself from liability or shown that he was without fault, but, on the contrary, had violated the legal duty he owed to the deceased child and that, therefore, he must respond in damages for her wrongful death. Conversely, if the jury found, as they impliedly did, that respondent exercised the extraordinary care and extreme caution that a reasonable person would exercise under similar circumstances, it was not incumbent upon respondent to prove that he was ‘absolutely without fault’ in order for him to exonerate himself. As pointed out by respondent, the case was tried and submitted to the jury on the issue of negligence and it cannot be held on this appeal that the respondent was absolutely liable for the highly improbable consequences of his act. The jury was instructed as to the high degree of care to which respondent was held and appellants were entitled to no more.

Appellants further complain that instructions defining ordinary care, negligence, and the burden of proof were contradictory, confusing, and misleading in view of the instructions given as to high degree of care required in the handling of firearms. Not only did the instructions given contain a correct statement of the law, but appellants themselves requested the instruction given which defined negligence in terms of ordinary care. Likewise at their request, the jury was charged as to what constituted ordinary care, and that if they found that ‘an ordinarily prudent person would not have shot the gun, or at least would not have shot in the direction and manner as did the defendant, where such prudent person was faced with the same situation and knew what the defendant knew, or reasonably should have known, then you must find the defendant guilty of negligence.’

Since negligence and ordinary care are relative terms it was proper for the court to explain to the jury their legal import and meaning. There is no conflict between these instructions and the instructions given as to the high degree of care required when one discharges a dangerous weapon, and if there were such conflict appellants would hardly be in a position to complain of instructions which they themselves offered.

Instructions to juries must be read and considered as a whole, and a study of all the instructions in the instant case convinces us that the jury was not only fully and fairly instructed but that the instructions are singularly free from error. A court is not required to give all of the instructions offered by a party but is only required to instruct the jury as to all phases of the law applicable to the issues in the case.

The judgment is affirmed, and the appeal from the order denying appellants' motion for a new trial is dismissed, said order being non-appealable. Code Civ.Proc. § 963.

SCHOTTKY, Justice.

VAN DYKE, P. J., and PEEK, J., concur.

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