Scottish Court of Session Decisions

Lord Neaves— My Lord Justice-Clerk, this appeal relates to an important subject, involving considerable delicacy in applying the general principles involved in the case.

Accidents from fire arms are both numerous and formidable, and it is therefore most desirable that the Court should be careful and strict in determining whether each case is suitable for the application of the general rule—that the owner in possession of a dangerous weapon is responsible for any injury that another person might receive from such weapon when under the owner's control, and in applying the rule where it is found to govern such a case.

There have been several cases in which parties who from negligence have left out firearms and injury has resulted to others, have been subjected to the consequences of their neglect, and the learned Sheriffs have thought that the present case discloses such an amount of culpable negligence as to bring it within the rule of these cases. We have to decide as to the case against the defender Pollock.

It is often very difficult and delicate to determine what, in the circumstances of the particular case, is culpable negligence, and in the present case there are some circumstances in favour of Pollock and some against him. We must then consider what this negligence consists in, but we certainly cannot hold that the owner of firearms is to be an insurer of the public against the risk of any accident that may happen from them—there must in every case of culpable negligence be fault of a tangible and intelligible kind. Any sort of neglect will not be enough; there must be that sort of neglect which a man of anxious and conscientious mind would not be guilty of in his own family.

In the present case the gun had not been in Pollock's own possession for some considerable time, he had discharged it himself on the occasion of his last using it, and did not know that it was loaded when it came back.

Did he then take due precaution in the circumstances? He did not know the gun was loaded—if he had I should not go against the judgment of the Sheriff—but we must begin with the fact that in his belief the gun was not loaded. Still he showed anxiety to obtain certain information on this point: he enquired of the person who bought the gun, he examined it, and he found no cap upon it. And here there is a distinction between the present case and that when the person knows the gun to be loaded, but runs the risk of any accident, feeling safe because of the absence of the cap. Whether or not culpa could be imputed in such a case is a different question from the present, but there can be no culpable negligence where the person, not knowing the gun to be loaded, held the want of a cap to be proof that it was not loaded, he having moreover himself left it unloaded.

It is true that Pollock further attempted to satisfy himself by trying the gun with the ramrod, and was only prevented by finding the ramrod immoveably stuck in its place. But the fact that he did attempt to try the gun with the ramrod is not a proof that he thought that it was loaded.

But what does he next do? He does not leave the gun in an exposed place where it might attract notice, but he puts it for greater safety into a press in the smithy, but no sooner is his back turned than this lad Frew takes it out, and while he is playing with it it goes off and causes the injury to the pursuer. Now, I cannot hold that neglect of this kind amounts to culpa.

On this point I think I cannot do better than contrast this case with the case quoted by the Sheriff, in which Lord Denman has the following observations:—“if I am guilty of negligence in leaving anything dangerous in a place where I know it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, and if that injury should be so brought about, I presume the sufferer might have redress by action against both or either of the two, but unquestionably against the first.”

Now, here the first point is, that the thing left in an exposed position should be dangerous in itsself. But that condition can hardly be said to have occurred in the present case.

Firearms are not dangerous unless loaded, and here we must hold that so far as the defender Pollock is concerned the gun was unloaded.

The second point contained in the case put by Lord Denman is, that the place where the dangerous instrument was left must be exposed or open to access. And in order more fully to illustrate his meaning his Lordship puts the following case:—“If a gamekeeper returning from his daily exercise should rear his loaded gun against a wall in the playground of school boys whom he knew to be in the habit of pointing toys in the shape of guns at one another, and one of these should playfully fire it off at a school fellow and maim him, I think it will not be doubted that the gamekeeper must answer in damages to the wounded party.”

Now, observe what is required here—the person must know that the gun was loaded, that is the first point.

Secondly, the place where it is left must be exposed as a playground. Here there is required the plainest element of indifference to consequences, the gun is supposed to be left where some one will be most likely to use it.

But in the present case there are none of these elements of carelessness. Pollock was not in recent possession of the gun so that he might know whether it was loaded or not; then he does all that he thinks necessary in the way of examination to find out whether or not it was loaded. He does not leave it in a dangerous position, nor does he leave boys about it, but grown men, who might have prevented any danger they saw likely to arise from the handling of the gun by the boy Frew.

I am therefore, considering all the circumstances of the case, not able to see any omission on the part of the defender Pollock amounting to neglect or culpa.

I am therefore for reversing the interlocutors of the Sheriffs; it is a matter of delicacy to do so, but unless we suppose a person in the position of the

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