SULLIVAN . CREED (1).

(1903. No. 980.)

Negligence-Dangerous article-Loaded gun left by defendant on his own land

-Intervening act of third party-Proximate cause of injury.

Defendant left a gun loaded and at full cock standing inside a fence on his lands, beside a gap from which a private path led over defendant's lands from the public road to his house. The defendant's son, aged between fifteen and sixteen, coming from the road through the gap on his way home, found the gun. He went back with it to the public road, and not knowing that it was loaded, pointed it, in play, at the plaintiff, who was on the road. The gun went off, and the plaintiff was injured :

:

Held, by the King's Bench Division (Palles, C.B., and Gibson, J.; Boyd, J., diss.) and by the Court of Appeal, that the defendant was liable in respect of the injury.

THIS was an application on behalf of the plaintiff to set aside a verdict and judgment entered for the defendant, and to enter judgment for the plaintiff for £50 damages, or for a new trial.

The action was brought by the plaintiff, a'boy of sixteen years of age, by his next friend, for the recovery of damages against the defendant for negligence.

The action was tried before Kenny, J., and a common jury of the city of Cork, at the Spring Assizes, 1903, when the following facts were proved :-On the 10th August, 1902, the plaintiff was returning homé from Mass by a public road which passed the defendant's lands. On his way he met Daniel Creed, a son of the defendant, aged between fifteen and sixteen, and two other boys. Daniel Creed left them at a gap leading to the defendant's house. This gap consisted of two pieces of deal, with a narrow passage between, level with the road, and from the gap a private path led to defendant's house, forming a short cut to it. The plaintiff and the two other boys continued along the high road, and had gone

(1) In the King's Bench Division, before PALLES, C.B., and GIBSON and BOYD, JJ.

K. B. Div.
1903.

April 21, 22.
May 18.

Appeal.

Nov. 5, 6, 20.

1903.

SULLIVAN

บ.

CREED.

K. B. Div. about 25 yards when the plaintiff heard Daniel Creed, who had come back to the high road, cry "Hi, lads." The plaintiff looked round, and saw a gun in Daniel Creed's hands pointed towards him. The gun went off, and the plaintiff was hit in the eye, and in consequence lost the eye. The plaintiff stated in his evidence that he heard the defendant say that in the morning he went out to shoot rabbits, but got none, and that he met a couple of neighbours and walked along the road with them, and then went to a cottage and read a paper, and before going left his gun. The plaintiff's mother stated she heard the defendant say that he went and took his gun; that he loaded it, and that it was near the road; that he put the gun inside the stile out of his hand, and that it was on full cock; that he went along with two men to show them a field of "spuds," and then went to a cottage and remained there reading newspapers till the people were coming back from Mass, and that after coming out he heard the shot of a gun. Daniel Creed, the defendant's son, was called as a witness for the plaintiff, and stated: "I saw the gun. It was up against the ditch near the gap. I saw it the moment I went in through the gap. I was fiddling with the gun; I did not know it was loaded; I was playing with it.”

The defendant called no evidence, and asked for a direction on the following grounds :-1. That the injuries arose from the wilful act of a third party of upwards of fourteen years of age, and that there was no legal liability on the defendant for the act of such a party. 2. That there was no legal duty on the part of the defendant towards the general public to guard against the boy obtaining possession of the gun. 3. That the injuries were not the reasonable and natural result of any failure of duty by the defendant.

It was admitted on both sides at the trial that the question was one of law, and that it was desirable to take the opinion of the jury on the question of damages. The only question left to the jury was, to what damages was the plaintiff entitled, assuming that he was entitled in point of law to succeed. They found £50, and then by direction of Kenny, J., the jury found a verdict for the defendant, and the learned Judge gave judgment for the defendant. It was agreed that the Court should be at liberty to draw

all proper inferences of fact, and that if the verdict was changed K. B. Div. the damages were to be £50.

Redmond Barry, K.C., and Carrigan, for the plaintiff.

Matthew J. Bourke, K.C., and A. M. Sullivan, for the defendant.

[The arguments of counsel proceeded on similar lines to those in the Court of Appeal, which will be found fully reported, infra, p. 335.]

BOYD, J. :

The facts in this case are not in dispute, and are few and simple, but they raise a novel and important question of law.

It appears from the evidence that on Sunday, 10th of August last, the defendant, who is a small farmer in the county of Cork, took out his gun for the purpose of shooting rabbits, and having charged it, he went out with it and put it on full cock. He found no rabbits and did not discharge the gun. He left the gun, loaded and cocked, standing against a fence on his lands, and beside a stile through the fence, which stile admits to a private and short pass to his house from the public road. Two men had come to him, and he went with them, as he states, " to show them a field of 'spuds,' and then went to a cottage and remained there reading newspapers till the people were coming back from Mass, and that after coming out he heard the shot of a gun." It further appears from the evidence in the case that Denis Sullivan had been at Mass, and that his way home led past the defendant's, and on the way he met Dan Creed (a son of the defendant, aged between fifteen and sixteen years) and two other young lads, and walked along the road with them. Dan Creed left them at the stile or gap leading to his own house. On going through the gap he saw the gun, which was up against the ditch near the gap. He took it up and was fiddling with it, not knowing that it was loaded, and was playing with it. He went out through the gap with it on to the high road and shouted, "Hi, lads," to the other boys, who had then walked to a distance of about twenty-five yards. The gun went off, and young Sullivan was hit in the left eye, and has, as a consequence, lost the eye. It is not stated in the evidence

1903. SULLIVAN

v.

CREED.

May 18.

1903.

v.

K. B. Div. what caused the gun to go off: whether Creed pulled the trigger or aimed at the other boys, or whether it went off by some accident SULLIVAN when he was, as he says, "playing with it." The evidence is, on the whole, very meagre and indefinite. At the close of the evidence for the plaintiff, Mr. Sullivan (counsel for the defendant) called no witness, and asked for a direction on three grounds mentioned in the report of the learned Judge who tried the case, and who directed a verdict for the defendant.

CREED. Boyd, J.

In my opinion there are two points in the case—(1) was the defendant guilty of negligence in leaving the loaded and cocked gun where he did leave it, and (2) assuming that he was guilty of negligence in so leaving the gun there, was the act of the defendant the ordinary or proximate cause of the damage to the plaintiff, or within the probable consequences which the defendant may be presumed to have contemplated, or for which he is responsible?

As to the first point, I am not satisfied that the defendant was guilty of actionable negligence in leaving his gun where he did. It was left by him on his own lands and not exposed to public view, and where he could not reasonably expect that it would be interfered with by anyone. The stile near to which it was left admited to a private pass to his own house, and no person had a right to use it except members of his own household. How many persons his household consisted of does not appear, and the only one mentioned in the evidence is his own son, through whose default the unfortunate accident happened. Where his son was on the morning in question does not appear except at the time of the occurrence. Could it be contended that if the defendant had left the gun loaded and cocked in his own room in the house he would be guilty of negligence? The gun, if not interfered with, could do no injury to anyone. Suppose he had locked it up in a press, he clearly would not have been negligent, even had he left the key in the lock. The mere fact that the gun was so left would not, I think, constitute actionable negligence. Had he sent some person to fetch it to him, and omitted to inform the person that it was loaded and cocked, or had he sent a young, inexperienced child for it, I think he would be responsible, though he should have cautioned the child.

1903. SULLIVAN

v.

CREED.

(The decision in the case of Dixon v. Bell (1) is based upon K. B. Div. the fact that a young and inexperienced child was negligently entrusted with a loaded gun, and not on the fact that the gun was allowed to remain loaded. Where any dangerous article is entrusted by any person, a duty is created towards the person so entrusted with it, and towards others who may be injured through that person's negligence or inexperience, if experience and knowledge should be reasonably necessary.

In the case of Cox v. Burbidge (2) the action was brought against the defendant to recover damages for injuries sustained by a kick from a horse of the defendant, which had strayed from his lands on to the public road, and there inflicted the injuries upon the child, the plaintiff in the action. Erle, C.J., in his judgment states:-"To entitle the plaintiff to maintain the action, it is necessary to show a breach of some legal duty due from the defendant to the plaintiff "—"there must be some affirmative proof of negligence in the defendant in respect of a duty owing to the plaintiff"; and again, "even if there was any negligence on the part of the owner of the horse, I do not see how that is at all connected with the damage of which the plaintiff complains."

As to the second point, Mr Sullivan contends that even though the defendant was guilty of negligence, it does not follow that he can be held responsible for injuries that have resulted, not from the direct consequence of such negligence, but from circumstances which he could not or should not reasonably anticipate, and which, in all human probability, would not have happened. The place in which he left the gun was inside the fence on his own lands, near a stile through which the public had no right of passage, and which should only be used by persons going to his own house. It does not appear what number of persons had a right to pass through the stile or go upon his lands, and, so far as appears from the evidence, he and his son were the only persons who had any right to do The son is between fifteen and sixteen years of age, and even had he considered that his son might pass through the stile and see the gun, I do not think that he could reasonably imagine or believe that a boy of that age would interfere with it. The boy

80.

(1) 5 M. & S. 198.

(2) 13 C. B. (N. S.) 430.

Boyd, J.