be reversed for that reason, as the record shows a proper exercise of his discretion in denying the motion.

The judgment is affirmed.

The other Justices concurred.

CHADDOCK v. TABOR.

1. NEGLIGENCE-INCONSISTENT REMEDIES.

Plaintiff was struck by a shot from an airgun discharged by a nine-year-old boy, and brought suit against one P. for his injuries. It was claimed in such suit that the boy, because of his immaturity, did not appreciate the dangerous character of the weapon, and that P., who had purchased the gun for another lad, his son, was liable The court, upon the facts, ruled against this contention, but the question of the negligence of the boy who fired the gun was not involved in the disposition of the case. Held, not to bar an action against the boy himself.

2. SAME INFANTS — CARELESS USE OF FIREARMS — EVIDENCEQUESTION FOR JURY.

Plaintiff testified that, while standing in the street near an opening in a fence, he was struck in the eye by a shot; that at about that moment he saw defendant, a boy nine years old, step out from behind a clump of grape-vines about 60 feet away, with an airgun in his hand; that defendant told him that he had been shooting, but not at him, and asked forgiveness for having injured him. Defendant claimed that he looked before he fired, that no one was in line of the shot, and that he did not fire in the direction of the street. It was his theory that the shot glanced from a board at which he was aiming, and struck the plaintiff while he was standing some 30 feet out of the line of the discharge. His testimony, however, upon the trial of a previous case, to which he was not a party, contained an admission that he saw plaintiff as soon as he had fired, and that plaintiff was then right in front of his gun. This testimony was read in evidence against him. Held, that there was a question for the jury as to whether the accident was occasioned by defendant's negligence.

Error to Berrien; Coolidge, J. Submitted October 8, 1897. Decided November 17, 1897.

Case by John N. Chaddock against Roscoe Tabor for personal injuries. From a judgment for plaintiff, defendant brings error. Affirmed.

A. Plummer, for appellant.

Gore & Harvey and N. A. Hamilton, for appellee.

MOORE, J. Plaintiff recovered a judgment against the defendant in the circuit court, from which judgment defendant appeals.

When the defendant was nine years and seven months old, he was using an airgun. A shot from this gun struck the plaintiff in the eye, and inflicted such injuries that it became necessary to remove the eye. It was the claim of the plaintiff that defendant had arrived at such years of maturity that, if negligent in the use of the gun, he was liable for the injury done the plaintiff, and that he was negligent in the use of the gun. It is the claim of the defendant that, under the facts disclosed, there was no liability; that the affair was an accident, pure and simple. It is his claim that he did not see plaintiff, and that plaintiff was not in a position where defendant ought to have seen him. It is his contention that, if a straight line were drawn from his position when he fired the gun to the position then occupied by the plaintiff, a corner of a dwelling house would intervene. He says he placed a grape upon a plank which was upon the ground, and pointed his gun at the grape, and fired; that, before doing so, he looked towards the street, to see if any one was in the line of the discharge of the gun, and saw no one. It is his claim that the shot from the gun struck the plank, glanced to the west and south, striking the plaintiff when he was 30 feet from the line which the shot should have taken when it was discharged from the gun.

Testimony was offered upon the part of the plaintiff

that, as he was standing in the street, near an opening in the fence, looking at the roof of a building in process of repair, he was struck in the eye. He dropped his head, and saw that he was blind in that eye. At about that minute he saw a boy step out from behind a clump of grapevines in front of him, about 60 feet away, with a gun in his hand. He asked the boy if he was shooting in there with the gun, and the boy replied, "Yes, but I was not shooting at you," placing quite a strong emphasis on the last word. He also testified that a little later the boy came up to where the plaintiff and Mr. Merrill were, and "he soon saw what injury he had inflicted, and wanted to know if I would not forgive him." This boy was the defendant.

In 1890, plaintiff in this case sued Mr. Plummer to recover for this same injury, claiming that the airgun was furnished to young Tabor under such circumstances as to make Mr. Plummer liable. A judgment was rendered in the circuit court in favor of Mr. Plummer, by direction of the trial judge, which judgment was affirmed in this court. Chaddock v. Plummer, 88 Mich. 225 (26 Am. St. Rep. 283). Young Tabor was a witness in the trial of the case against Mr. Plummer. The testimony given by him in that trial was put in evidence in this trial. He then testified, among other things, that he looked before he fired, to see if anybody was coming along the street; that there was no one; that, when he first saw Mr. Chaddock, he was right beside the post, was one side of it, was right in front of his gun. Again, he said he saw Mr. Chaddock right after he shot, and went around where he

was.

"Q. Could you see him from where he was when you got through shooting?

"A. Yes, I could see him then.

"Q. Did you go down there?

"A. I went down where he was.

"Q. You found he was hurt?

"A. Yes, sir.

"Q. You didn't see anybody at all when you shot the gun?

"A. I didn't see anybody at all, until after.

"Q. You knew it wouldn't be right to shoot towards anybody if anybody was there?

"A. Yes, sir."

The circuit judge submitted special questions to the jury, as follows:

"Q. Was the shot which produced the injury to plaintiff fired at a grape on a board which was only a few feet from the defendant?

"Q. Was the defendant, at the time he fired the shot, facing the west?

"Q. Was the injury produced by the shot glancing about 30 feet to one side of the direction in which the gun was aimed ?"

These questions were answered in the negative.

The defendant was not sworn as a witness in this trial. The trial judge gave a great many requests to charge, prepared by counsel for each of the parties. Complaint is made by the defendant because, as part of a request given on the part of the plaintiff, the trial court used this language:

"If you find from the evidence that the boy pointed the gun at the plaintiff without intending to injure the plaintiff, and plaintiff was so near that defendant ought to have apprehended that such act was dangerous, the defendant would be liable, as the act of pointing the gun at the plaintiff was a negligent act; and, in that event, your verdict should be for the plaintiff," etc.

Defendant also excepts to the refusal to charge:

"The undisputed evidence tends to prove that the defendant was facing west when he shot the spring gun at a grape on a board in his immediate front, and the direct line of fire of the spring gun was west, while the plaintiff was some 30 feet south of the line of fire, and some 60 or 70 feet from the defendant; and the jury are not to presume that the gun was pointed in any other direction, or that the plaintiff was standing in any other place."

The court charged the jury, upon the request of defend

ant:

"The burden of proving the negligence alleged in this case is upon the plaintiff, and, if he has not proved negligence on the part of the defendant by at least a clear preponderance of the evidence, then he cannot recover.

"Defendant is not liable unless his conduct at the time in question was negligent. Negligence, as applied to this case and to the defendant, is the failure to do what a reasonable and prudent boy of the age and intelligence of the defendant would ordinarily have done under the circumstances, or doing what such a boy, under the circumstances, would not have done. If the defendant was not negligent under the above definition, then he is not liable.

"If the jury believe from the evidence that, when the defendant fired the air or spring gun, he was facing west, and that he was 75 or more feet from the highway, and that the gun was pointed at a grape on a board only a few feet from where the defendant was standing, and that plaintiff, at the time the shot was fired, was in the neighborhood of 30 feet to the south of the direction in which the gun was pointed, and that defendant looked just before he shot, and did not see the plaintiff, and that plaintiff was injured by reason of the shot glancing something like 30 feet to the south of the line of fire of the spring gun, then there was no negligence on the part of the defendant; and, if you so find, you will render a verdict for defendant.

"If Roscoe Tabor, just before he fired, looked to see if any one was in or near the line of fire, and there was no one there, then he was not negligent in shooting as he did, and in such case he is not liable in this suit.

"If the injury to plaintiff was caused by the shot glancing a long and unusual distance and direction out of the line in which defendant aimed, then defendant is not liable.

"An accident is an event from an unknown cause, or an unusual and unexpected event from a known cause; a chance or casualty. In this case, if the injury to Mr. Chaddock was an unusual and unexpected event from the use of the spring gun under all the circumstances, then the injury was accidental, and plaintiff cannot recover.

"You are instructed that, although you may believe from the evidence that the injury complained of was occasioned by the act of the defendant, still, if the jury further believe from the evidence that such injury could not have been foreseen or reasonably expected to result from the act of the defendant, then the defendant is not liable."