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KUHNS v. BRUGGER (10/07/57)

October 7, 1957


Appeals, Nos. 33, 34, 35, and 36, March T., 1957, from judgments of Court of Common Pleas of Erie County, May T., 1954, No. 205, in case of Albert G. Kuhns, a minor, by his guardian, A. Leroy Hetz, and Francis M. Kuhns, in his own right, and Emma Cecile Kuhns, v. George A. Brugger et al. Judgments affirmed; reargument refused November 12, 1957.


William F. Illig, with him A. Grant Walker and Gifford, Graham, MacDonald & Illig, for appellant.

John G. Gent, with him Curtze & Gent, for appellant.

Charles E. Kenworthey, with him Frank B. Quinn, James H. Hardie, Quinn, Leemhuis, Plate & Dwyer, and Reed, Smith, Shaw & McClay, for appellees.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Jones

[ 390 Pa. Page 334]


On July 23, 1953 a tragic and unfortunate event occurred which has resulted in this litigation. Albert G. Kuhns, 12 years old, was wounded by a bullet from a pistol discharged by his cousin, George A. Brugger, also 12 years old, while in the cottage of their common grandfather, George W. Bach, located at Manchester Beach, Erie County, and, as a result thereof, Kuhns sustained serious physical injuries.

Through a guardian, Kuhns instituted a trespass action, joined in by his parents, against George Brugger; later, by permission of court, the executor of the George W. Bach Estate was joined as an additional party defendant.*fn1 A motion for severance of the actions having been refused, the suit against both defendants

[ 390 Pa. Page 335]

    proceeded to trial. The jury returned a verdict against both defendants in the amount of $182,096; the Court below later reduced this amount to $116,604.60 and this reduction was accepted by plaintiffs. From a judgment entered on the verdict these appeals were perfected.

Both defendants have appealed, requesting judgments n.o.v., or, in the alternative, new trials. In considering these appeals the scope of appellate scrutiny of the evidence varies. Upon an appeal from the refusal to grant a motion for judgment n.o.v. the testimony must be read in the light most favorable to the verdict winner, all conflicts therein must be resolved in his favor, and he must be given the benefit of all facts and inferences from facts reasonably deducible from the evidence: Wolansky v. Lawson, 389 Pa. 477, 481, 133 A.2d 843; Wilbert v. Pittsburgh Consolidated coal co., 385 Pa. 149, 154, 122 A.2d 406; Lessy v. Great Atlantic & Pacific Tea Company, 121 Pa. Superior Ct. 440, 444, 183 A. 657. However, this rule does not apply upon appeal from the refusal of a new trial.*fn2 In determining the propriety of the refusal of a new trial the present Chief Justice JONES stated in Wilbert v. Pittsburgh Consolidated Coal Co., supra (pp. 156, 157): "Practically all of the evidence was introduced by way of oral testimony the credibility whereof was necessarily for the jury whose verdict will

[ 390 Pa. Page 336]

    not be set aside as being against the evidence unless it appears to be arbitrary and capricious. A determination in such regard is, in the first instance, within the province of the trial court whose decision will not be disturbed unless there is clear error of law or palpable abuse of discretion." In determining the validity of a refusal to enter judgment n.o.v. we examine the evidence to determine whether or not sufficient proof was adduced at the trial to justify the submission to the jury of each factual question: Ashcraft v. C. G. Hussey and Co., 359 Pa. 129, 134, 58 A.2d 170. With these principles in mind the following factual narrative emerges.

Bach, an elderly man, owned and occupied - at least, part of each year - a one story cottage at Manchester Beach on the shore of Lake Erie. This cottage was located in a somewhat isolated area in the immediate vicinity of which were several commercial fisheries. A hunting devotee, Bach owned various guns and other firearms including the Colt Woodsman .22 calibre automatic pistol which constitutes the focal point of this incident. When this pistol was not in use Bach kept it in a loaded condition in an unlocked dresser drawer in his unlocked bedroom.

At approximately noon on July 23, 1953, Bach's two young grandsons, Kuhns and Brugger, went fishing; upon their return at approximately 3:30 P.M. and during Bach's absence, the boys entered their grandfather's bedroom. Katrina Brugger - Brugger's 2 year old sister - was then playing in the bedroom. In a spirit of play Brugger picked up a so-called "under and over" gun - a combination shotgun and rifle - and pointed it at Kuhns. As he did this, miss Fries, a great aunt of the boys, entered the bedroom and ordered Brugger to pur away the gun which he did. A few minutes later Brugger went to his grandfather's

[ 390 Pa. Page 337]

    dresser and found in the top left drawer thereof the Colt automatic pistol,*fn3 previously mentioned, which was then loaded with a clip of cartridges resting in its handle. In order to prepare this pistol for firing one draws back an upper slide forcing a cartridge into the firing chamber and the cartridge is then exploded by pulling the trigger. There was some testimony that this pistol at the time was mechanically defective and that, on occasion, if one held his finger on the trigger as he pulled back the slide, the pistol would discharge, without the added requirement of squeezing the trigger - a one-step, rather than a two-step procedure.

According to Brugger*fn4 the shooting occurred in the following manner: "And I took it [the pistol] out, took it out of the holster, took it in my hand. I believe I had my finger on the trigger. And I pulled the slide back, and then the shot occurred." The bullet, thus ejected, penetrated Kuhns' body and perforated the spinal cord, paralyzing the entire lower portion of his body and destroying all voluntary control of his organs in that part of his body. His condition, as portrayed at trial, is such that he can no longer walk, requires constant care and medication and can never be gainfully employed.

The defendant Brugger takes the dual position that the evidence was insufficient as a matter of law to establish any negligence on his part and that the Court below, in submitting the question of his negligence to

[ 390 Pa. Page 338]

    the jury, not only held him, a minor, to the standard of conduct required of an adult, but, in effect, charged the jury that he was guilty of negligence per se in that he had violated a criminal statute. We shall first concern ourselves with Brugger's appeals.

Brugger's contention that he is entitled to judgment n.o.v. because of the lack of sufficient evidence of negligence on his part is clearly untenable. This Court, in Fredericks v. Atlantic Refining Co., 282 Pa. 8, 13, 127 A. 615, set forth the required rule of conduct when dealing with any dangerous agency: "A higher degree of care is required in dealing with a dangerous agency than in the ordinary affairs of life or business, ... every reasonable precaution suggested by experience and the known danger ought to be taken ..." See also Maternia v. Pa. R.R. Co., 358 Pa. 149, 56 A.2d 233; Summit Hotel Company v. National Broadcasting Company, 336 Pa. 182, 8 A.2d 302; Konchar et al. v. Cebular, 333 Pa. 499, 3 A.2d 913. Any loaded firearm, including a pistol, is a highly dangerous instrumentality and, since its possession or use is attended by extraordinary danger, any person having it in possession or using it is bound to exercise extraordinary care. A person handling or carrying a loaded firearm in the immediate vicinity of others is liable for its discharge, even though the discharge is accidental and unintentional, provided it is not unavoidable: Lindh v. Protective Motor Service Co., Inc., 310 Pa. 1, 4, 164 A. 605; Winans v. Randolph, 169 Pa. 606, 32 A. 622; Knasiak v. Rambo, 57 Pa. Superior Ct. 8; Gaussman v. Philadelphia & Reading Railway Co., 55 Pa. Superior Ct. 542.*fn5 When a person picks up a firearm,

[ 390 Pa. Page 339]

    points it at another*fn6 and operates the firing mechanism, with or without the knowledge that the firearm is loaded, and the firearm is discharged, and the evidence so indicates, then a prima facie case of negligence is established.

Brugger submits, however, that, because of his age, he was presumptively incapable of negligent conduct and therefore his conduct did not render him liable for the injury which followed the discharge of the firearm. In short, Brugger relies upon his age to absolve him of any culpability for his actions and the manner in which the Court below instructed the jury to secure a new trial.

Even though the standard of care applicable to a minor differs from that applicable to an adult,*fn7 nevertheless

[ 390 Pa. Page 340]

    a minor may be guilty of actionable negligence. Both an adult and a minor are under an obligation to exercise reasonable care; however, the "reasonable care" required of a minor is measured by a different yardstick - it is that measure of care which other minors of like age, experience, capacity and development would ordinarily exercise under similar circumstances. In applying that yardstick, we place minors in three categories based on their ages:*fn8 minors under the age of seven years are conclusively presumed incapable of negligence;*fn9 minors over the age of fourteen years are presumptively capable of negligence, the burden being placed on such minors to prove their incapacity;*fn10 minors between the ages of seven and fourteen years are presumed incapable of negligence, but such presumption is rebuttable and grows weaker with each year until the fourteenth year is reached.*fn11 As the late Mr.

[ 390 Pa. Page 341]

Justice ALLEN STEARNE said in Koenig v. Flaherty, 383 Pa., supra (page 190): "The standard by which actions of children are to be measured is the child's capacity to appreciate the danger involved: Philadelphia, Baltimore and Wilmington R.R. Co. v. Layer, 112 Pa. 414, 419, 3 A. 874. This capacity is usually determined by the understanding expected from children of like age, intelligence and experience: [Citing cases]."

Brugger at the age of 12 years was not to be judged by adult standards; on the contrary, it was necessary to inquire whether his conduct was such as should reasonably have been expected of a child of like age, intelligence and experience. Brugger's culpability or exculpability of actionable negligence depended upon a measurement of his conduct based on variable factors - his capacity and understanding based upon his age, intelligence, experience, etc.: a measurement properly to be made by a jury with the opportunity to evaluate his individual capacity to perceive danger. Concerning the capability of negligent conduct of a child between the ages of seven and fourteen it has been said: "Generally their conduct has been determined by a jury. This has been because the ascertainment of the capacity to perceive danger involves the determination of judgment factors, i.e., ...

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