Yusko v. Remizon

R. Monell Herzberg and R. Waldron Herzberg for plaintiff. William F. Christiana for Stanley Remizon, defendant. Maynard, O'Connor & Smith for Vincenti Remizon and another, defendants. returning from hunting, and most especially when any manipulation of the gun is to be performed or is observed. There may be those who feel that these repeated warnings to persons of experience are those of the overcautious, still others may feel that they are but the acts of the ordinarily careful person. There is a distinct difference between the nagging of a housewife over the dirt being brought into the kitchen from the hunting boot, from the cautious warning to be careful with dangerous weapons. Firearms are inherently dangerous. Something more than ordinary care is required (Kingsland v. Erie Co. Agric. Soc., 298 N.Y. 409). There is a distinction between the storage and handling of pancakes and bicycles from that of shotguns and other dangerous instrumentalities. This distinction applies not only to their handling, but to their possession and storage. Surely no prudent person would allow a total stranger to enter his home with a shotgun without some inquiry or warning. Nor do I believe one can rely upon the experience of others where the duty of care is in himself. It might as well be said that it was overcautious for a large corporation to require counter-signatures from their most competent employees and officers in the issuance of large checks and drafts, as to say that it would be unreasonable to expect the landlord to remind another occupant of the apartment to make sure that a dangerous firearm was unloaded before it was manipulated in the apartment below a sleeping baby. The jury has found that her failure to warn her son was an act of carelessness, and I cannot as a matter of law say that that conclusion was impossible for reasonable minds to reach. I am mindful of the decision of a few days ago of Napiearlski v. Pickering (278 App. Div. 456). But there the decision would seem to hinge upon the fact that when the testimony of two infant children who were not shown capable of understanding the nature of an oath, was stricken from the record, there remained no proof in the record that the father, the owner of the property, had left the gun loaded. The distinction seems to rest, as was pointed out in the dissenting opinion of Judge McCURN, between a loaded and an unloaded firearm. For the above reasons the motion to set aside the verdict as to the mother, Sophie Remizon, is denied. There seems to be no question in my mind as to the negligence of the defendant, Stanley Remizon. That motion is also denied. The motion as to Vincenti Remizon has already been granted. The order may provide for thirty days in which to prepare a notice of appeal, and sixty days in which to make a case.