Opinion
January 14, 1971
Appeal from the Chautauqua Trial Term.
Present — Goldman, P.J., Marsh, Gabrielli and Henry, JJ.
Judgment, insofar as it dismisses the complaints of the plaintiffs against the defendant Dickinson, unanimously reversed on the law and facts and a new trial granted, with costs to abide the event, and otherwise judgment affirmed, without costs. Memorandum: Infant plaintiff, age 15, was blinded in one eye by a clay target launcher owned by defendant Kenneth Dickinson and newly acquired by him from codefendant Hanover Fish and Game Club, Inc., of which he was a director. Upon securing the device and moving it to his home, Dickinson called to the infant plaintiff, a neighbor, and told him that he had something on his truck which he wanted him to see and that if he could guess what it was, he could have it. As both parties were engaged in inspecting the device and leaning over in close proximity to it, the launcher, which, unknown to either, was cocked, discharged and the firing arm swung around striking infant plaintiff in the eye. Defendant Dickinson had never operated the device and had no knowledge of its operation. He had watched it being fired from a distance and had been informed by others at the Fish and Game Club of its dangerous character. Infant plaintiff was totally unfamiliar with the machine and its operation, and such fact was known to defendant Dickinson. From a review of the record it would appear that the defendant Dickinson, who was familiar with the dangerous character of the launcher, demonstrated a careless disregard for the safety of the infant plaintiff by inviting him over to inspect the device and placing him within the zone of danger. We therefore conclude that the jury verdict of no cause of action in favor of defendant Dickinson was against the weight of the evidence. The verdict of no cause of action in favor of the defendant Hanover Fish and Game Club, Inc., was amply supported by evidence that defendant Dickinson was advised of the dangerous character of the device and that an offer of help in moving the machine had been made which defendant Dickinson had declined, without any indication by him of his ignorance of the machine or its operation.