Negligence, In entrusting firearms to minor. Parent. Evidence, Of reputation, Manner and emphasis of witness. Witness.
If a father, knowing that his son sixteen years of age is an unfit person to be entrusted with firearms, allows him to possess and control a gun and its ammunition, and thereupon the son wrongfully or negligently shoots and kills another boy about his own age, the father of the boy who was shot may maintain an action of tort against the father of the boy that shot him to recover for the loss of his services.
In an action, by the father of a boy that was shot and killed by another boy of about his own age, against the father of the boy that shot and killed him, to recover for the plaintiff's loss of his son's services by reason of the defendant's negligence in permitting his son to possess and control a gun and ammunition, having knowledge of his unfitness to possess them, a police officer, who has testified that he knows the reputation of the defendant's son as to the use of a gun at the time of the shooting, may be allowed to testify that "his reputation was that he handled this gun in a very careless manner at different times in the neighborhood;" but this evidence is admissible only to show the reputation of the defendant's son before he shot the plaintiff's son and can be considered by the jury only upon the issue whether before that shooting the defendant had knowledge or reason to know that his son was careless with a gun.
Where at the trial of an action, in which it was material to show that the defendant had knowledge or notice that his son was careless with a gun before he shot the plaintiff's son, a policeman had testified that the defendant's son had the reputation of such carelessness, and on being asked upon his cross-examination, "You cannot say that these men came to you before this accident and told you, can you? and be sure of it?" answered, "No, positively no," this answer does not show necessarily that the witness's knowledge of the boy's reputation was acquired after the accident, because his manner and his emphasis on the words may have indicated that his meaning was merely that he could not state positively whether his information was acquired before the accident, and the interpretation of his words as spoken by him on the witness stand was for the jury.
SHELDON, J.
While the evidence was meagre and the case comes near to the border line, we cannot say that there was error in submitting the issues to the jury. They could find that the defendant was negligent in allowing his son Flam to have the gun and ammunition, that Flam was not a fit person to be trusted with articles of so dangerous a character, and that Flam's act was either wrongful or negligent and was one which the defendant ought to have foreseen and guarded against. In that event the defendant was liable for the natural consequences that followed directly from his negligence. Horan v. Watertown, 217 Mass. 185, 186.
There was evidence of the due care of both the plaintiff and the plaintiff's son.
The evidence as to Flam's reputation about the use of a gun was admitted properly upon the question whether the defendant knew or ought to have known that it was unsafe and dangerous to allow Flam to have and use a gun. The jury were told that this evidence could be considered only if it showed that before the accident Flam had the reputation of being careless with a gun, and that in any event it could be considered only upon the issue of the defendant's knowledge of that fact. That comes within the principle of such cases as Monahan v. Worcester, 150 Mass. 439; Killam v. Peirce, 153 Mass. 502, 506; Carson v. Canning, 180 Mass. 461; and Palmer v. Coyle, 187 Mass. 136, 140.
The police officer could testify as to that reputation. He had testified that he knew it. His testimony on cross-examination did not show conclusively that all his knowledge had been acquired since the accident. His answer, "No, positively no," to the final question whether he could say that his information was before the accident, may have been shown by his manner and his emphasis on the words to mean that he could not say this positively. On that, the inference was for the jury.
Exceptions overruled.