was caused by the negligence of the defendant; second, that he himself was not guilty of contributory negligence. And the burden of proof is upon the plaintiff to establish both of these propositions. I have already instructed you that, as a matter of law, the plaintiff has established the first proposition, that the defendant, in so pointing the gun and discharging it, was guilty of negligence." The sections of the statute referred to by the court in its charge to the jury are 9110-9113, inclusive, of 2 How. Stat. The act was passed in 1869, and is entitled “An act to prevent the careless use of firearms." In People v. Chappell, 27 Mich. 486, this statute was under consideration, and it was held that a prosecution would not lie, and a conviction would not be sustained, under it, where the use of firearms was not careless, but was intentional or malicious. Mr. Justice CAMPBELL, in speaking of the act, said: "The statute was designed to punish a class of acts done carelessly, but without any design of doing mischief, and the various sections must, under our Constitution, be construed so as to conform to the title. The absence of malice is as necessary an ingredient in the statutory definition as the use of firearms. And the offense is purely statutory." Section 9113 provides: * * * "Any party maimed or wounded by the discharge of any firearm as aforesaid may have an action on the case against the party offending, for damages, which shall be found by a jury," etc. The general rule, and without reference to this statute, is that a very high degree of care is required from all persons using firearms in the immediate vicinity of others, no matter how lawful or even necessary such use may be. 7 Am. & Eng. Enc. Law, 523. This same principle is stated in 2 Shear. & R. Neg. (4th Ed.) § 686. In Morgan v. Cox, 22 Mo. 373 (66 Am. Dec. 623), it was held that, where injury to another is caused by an act that would have amounted to trespass vi et armis under the old system of actions, it is no defense that the act oc curred through inadvertence, or without the wrong-doer's intending it; it must appear that the injury done was inevitable, and utterly without fault on the part of the alleged wrong-doer. Defendant's counsel contended that if the jury found that the defendant had used the ordinary and usual means of unloading the gun, and satisfied himself by such means that the gun was unloaded, then he could not be charged with negligence. We think the court very properly refused that instruction. As was said in Castle v. Duryee, 2 Keyes, 173: "It is not the law that if one, supposing a musket to be unloaded, or to be charged only with powder, snaps it at another, and he is wounded, he is irresponsible in a civil action; and it is of no consequence, so far as maintaining the action is concerned, that he acted upon the most plausible or the most reasonable grounds, and fully believed that the gun was not charged with anything which could injure another." In Judd v. Ballard, 66 Vt. 668, it appeared that the plaintiff was injured by the discharge of a revolver in the hands of the defendant while the two were facing each other, lying in the bottom of an express wagon. The defendant had discharged one of the barrels for amusement, and was fixing the hammer, preparatory to returning the revolver to his pocket, when the discharge which injured the plaintiff occurred. It was said by the court that, "upon the facts presented, the defendant is clearly answerable for the damages.' It was further said: "The shooting of the plaintiff was an accident, but in no sense an unavoidable accident. It would not have occurred but for the defendant's carelessness. The test of liability is not whether the injury was accidentally inflicted, but whether the defendant was free from blame,"―citing Vincent v. Stinehour, 7 Vt. 62 (29 Am. Dec. 145); Morris v. Platt, 32 Conn. 75; Bullock v. Babcock, 3 Wend. 391. It was further stated in that case: "The injury was the direct result of a force put in motion by the defendant. The fact that the force was put in motion through negligence does not preclude the plaintiff from maintaining trespass. Neither an intention to injure the plaintiff, nor an intention to do the act which caused the injury, is essential. It is sufficient if the defendant does a positive act from which the plaintiff suffers an immediate injury,"-citing 1 Smith, Lead. Cas. 560; Leame v. Bray, 3 East, 593; Welch v. Durand, 36 Conn. 182 (4 Am. Rep. 55); Claflin v. Wilcox, 18 Vt. 605; Howard v. Tyler, 46 Vt. 683. The court, continuing, further said: "It was proper to direct a verdict. There was no room for conflicting views as to the essential feature of the defendant's conduct. The question was not whether it was proper to place the hammer between two cartridges, nor whether the defendant was handling the hammer in a proper manner. However proper it may have been to place the hammer in that position, and whatever the care with which the defendant was moving the hammer, it was negligence to be adjusting it with the revolver so held that an accidental discharge would injure the plaintiff. There was no evidence tending to show that the position of the revolver at the time of discharge was due to any controlling outside force, and no circumstances are shown from which the presence of such a force could be inferred. Any danger that might arise from the jolting of the wagon the defendant was bound to consider. The undisputed facts admit of no inference which could relieve the defendant from liability." In Tally v. Ayres, 3 Sneed, 677, it was said: "To constitute an available defense in such cases, it must appear that the injury was unavoidable, or the result of some superior agency, without the imputation of any degree of fault to the defendant. The lawfulness of the act from which the injury resulted is no excuse for the negligence, unskillfulness, or reckless incaution of the party. Every one in the exercise of a lawful right is bound to use such reasonable vigilance and precaution as that no injury may be done to others. Nor is it material, in a civil action for the recovery of damages, whether the injury was willful or not." + See, also, Reg. v. Salmon, 6 Q. B. Div. 79, 29 Moak, Eng. R. 503. It is apparent from the defendant's own testimony that he was responsible for the cartridges having been left in the gun. He had been hunting that day, and had loaded it with cartridges. The fact that he believed that he had removed them all from the gun would not relieve him from responsibility in snapping it, when he knew it was pointed directly towards the plaintiff. Had he examined the gun, he would, of necessity, have seen the cartridge there, as it was shown that it would have been in plain view when placing the works back in the gun; also, that, when pulling the lever, the cartridge being raised into the barrel, had he then looked he could have seen the cartridge in the barrel. He testified that the gun was pointing at the plaintiff all the time he was fixing it, and that it was in the same direction when he snapped it off. The statute is aimed at just such cases as the present. It was also a plain violation of the statute to snap the gun while it pointed directly towards the plaintiff, and this violation. of statutory duty is negligence per se; but, aside from this, we think that under the well-settled rules, and under the authorities above cited, the defendant was guilty of negligence, and was liable in a common-law action. The only other contention in the case which we deem it necessary to discuss is the claim made by the defendant that the plaintiff was guilty of contributory negligence. That question, however, we think, was fully and fairly submitted to the jury. The court charged them upon that proposition as follows: "The claim of the plaintiff is that, when he came into the hotel there that evening for the purpose of having a friendly visit with the defendant, he found him engaged in repairing the lock of his gun. He says he took a seat a short distance from him, but out of the range of the gun, as the defendant was then handling it; that, after the defendant had repaired the lock and put it together again, that he took this gun up, after some remarks had been made in regard to snapping it or trying * * * it, and shifted its position so that it then was pointing towards him, and snapped the gun. His claim is that this changing of the gun as he took it up in order to cock it was done so soon that he had no opportunity to protest or get out of the way. If you find that this occurred as claimed by the plaintiff, then he was not guilty of contributory negligence. On the other hand, it is claimed by the defendant that, during all the time the plaintiff remained there, he was sitting either in actual range of this gun, or so near that a slight movement of it would have brought him in range. His claim is, too, that after the lock had been repaired, and while the defendant was operating the hammer to test the strength of the mainspring, that the plaintiff requested him to try or snap the lock while it was pointed (he made this request, rather, at a time when the gun was pointed) right towards the plaintiff in the case; that this request was made twice; that then the defendant did snap the gun; that it proved to be loaded; there was an explosion, and the bullet penetrated the thigh of the plaintiff. If you find that the defendant's version of this is true, I charge you that if you find that during the 20 minutes or so that the plaintiff sat by the defendant before the accident, and while the defendant was repairing the gun, the plaintiff sat in range of the gun, or so nearly within the range of it that a slight movement of it might bring him within range, and if, while sitting there, he knew the defendant was about to snap the gun to try the lock, and had time either to protest or get out of the way, and did neither, or if you find that the plaintiff invited the defendant to try it or snap it, meaning thereby to allow the hammer to strike so as to discharge the cartridge, if one happened to be in the gun, then the plaintiff was guilty of contributory negligence, and he is not entitled to recover. As I have said to you, the burden of proving that he was not guilty of contributory negligence is upon the plaintiff." There is a claim made in the case that the court improperly allowed certain expert testimony to be given, bearing upon the question of defendant's negligence in handling the gun; but inasmuch as we hold the court was correct in charging the jury, as matter of law, that the 112 MICH.-3. |