Baxter v. Roberts

By the Court, Wallace, C. J.: This action was brought by Baxter, who is a carpenter by occupation, to recover damages from the defendant for certain injuries sustained by the former by reason of a gunshot wound received by him at the hands of some third and unknown party or parties. Roberts was the owner of a certain lot in San ffraneisco, covered by water, and lying upon the • southerly side of Seventh street, and which had been inclosed by him with a fence, and he employed the plaintiff to go with him upon these premises and perform labor there as a carpenter. Upon reaching the lot in a boat, the plaintiff and another employe, in company with the defendant, commenced to tear away some boards from a fence newly erected thereon, and which ran across the northerly corner of the lot to Seventh street, when the party were fired upon from a house or shanty situate upon a neighboring lot to the west of the Roberts lot, and the plaintiff was shot through the joint of the left shoulder with a rifle ball, which carried away portions of the bone, causing him great physical suffering, of course, and, in the opinion of his medical attendant, maiming him for life.

The evidence upon the part of the plaintiff tended to [191]show, and the verdict of the jury upon the issues joined must be considered to have found the fact to be, that when the defendant engaged the services of the plaintiff to work upon these premises, and took him there in the boat for the purpose of performing the labor, the defendant knew or had information such as would reasonably lead him to believe that his interference with the newly-erected fence would be forcibly resisted by certain other parties who had erected it and claimed to be in its possession, and who actually occupied the shanty already referred to, with loaded firearms, within shooting range of this fence, and who had announced to the defendant their purpose to resist by force any interference therewith. The verdict must be considered, too, to have found that such knowledge, belief, or information as the defendant possessed upon these matters was not communicated to, but was withheld by him from, the plaintiff, who went to the performance of the work in ignorance and without the apprehension or suspicion that, in going, he was thereby incurring any personal danger or hazard.

The learned Judge of the Court below stated to the jury that the “ turning point in the case is the charge that the defendant, Roberts, employed the plaintiff, Baxter, to perform a service which he, Roberts, knew to be perilous, without giving Baxter any notice of its perilous character,” and instructed them as follows: