King v. Smythe, 204 S.W. 296, 297 (Tenn. 1918); Nichols v. Atnip, 844 S.W.2d 655, 658 (Tenn.Ct.App. 1992); Highsaw v. Creech, 69 S.W.2d 249, 254 (Tenn.Ct.App. 1933). Although this rule prevents vicarious liability, it does not prevent parents from being held liable for their own negligence.
As to the Trial Judge'snot having erred in passing on the credibility of the Appellant'switnesses: 249 S.C. 168, 153 S.E.2d 312; 251 S.C. 157, 161 S.E.2d 171. As to the Trial Judge's nothaving erred in holding as a matter of law that an air rifleis not a dangerous instrumentality: 57 Am. Jur.2d Negligence, Section 110, page 462; 82 Ill. App.2d 95, 227 N.E.2d 80; 17 Tenn. App. 573, 69 S.W.2d 249; 81 Wis. 239, 51 N.W. 438. October 9, 1973.
The court reasoned as follows: "There are many things used by children that may be said to be unsafe when used for the purpose for which they are intended. A baseball, a baseball bat, a penknife, a Boy Scout hatchet, a bicycle, all have the capacity to injure the user or others in the course of their normal use. They are not, however, to be categorized as 'dangerous instrumentalities.' As was said by the Tennessee court in Highsaw v. Creech, 17 Tenn. App. 573, 69 S.W.2d 249, 252, 'an air gun is not a dangerous instrumentality of itself, but is in fact a toy. * * * The fact alone that an injury may be inflicted by such a toy does not make of it a dangerous instrumentality in the sense that the term is generally used.
We further note that the word "gun" is defined by Black's Law Dictionary, 4th ed., as follows: "A firearm for throwing a projectile with gunpowder. Highsaw v. Creech, 17 Tenn. App. 573, 69 S.W.2d 249. A portable firearm such as a Rifle, shotgun, carbine, etc. Henderson v. State, 75 Fla. 464, 78 So. 427, 428. A pistol or revolver. State v. Christ, 189 Iowa 474, 177 N.W. 54, 57.
They are not, however, to be categorized as 'dangerous instrumentalities.' As was said by the Tennessee court in Highsaw v Creech, 17 Tenn. App. 573, 69 S.W.2d 249, 252, 'an air gun is not a dangerous instrumentality of itself, but is in fact a toy. * * * The fact alone that an injury may be inflicted by such a toy does not make of it a dangerous instrumentality in the sense that the term is generally used.' In Morris v Toy Box, 204 Cal.App.2d 468, 22 Cal.Rptr. 572, 574-575 (1962), a complaint brought by a minor against a retailer alleging that the retailer knew that the intended user of a bow and arrow was the purchaser's ten-year-old boy was dismissed, the court saying, 'the bow and arrow has been in use by young and old alike for thousands of years. * * * To us it is simply inconceivable that a 10-year-old boy, much less his mother, would be unacquainted with the use of so common an article as the one here in question.'
The Supreme Court of Illinois in Pitts v. Basille, 35 Ill.2d 49, 219 N.E.2d 472, in considering an action where a minor was struck in the eye by a dart thrown by another minor, said: "There are many things used by children that may be said to be unsafe when used for the purpose for which they are intended. A baseball, a baseball bat, a penknife, a Boy Scout hatchet, a bicycle, all have the capacity to injure the user or others in the course of their normal use. They are not, however, to be categorized as `dangerous instrumentalities.' As was said by the Tennessee court in Highsaw v. Creech, 17 Tenn. App. 573, 69 S.W.2d 249, 252, `an air gun is not a dangerous instrumentality of itself, but is in fact a toy. * * * The fact alone that an injury may be inflicted by such a toy does not make of it a dangerous instrumentality in the sense that the term is generally used.
An air rifle is not a dangerous weapon in itself. Highsaw v. Creech, 17 Tenn. App. 573, 69 S.W.2d 249; Norlin v. Connolly, 336 Mass. 553, 146 N.E.2d 663. If the defendants in this case had been living in an apartment in a large city where an ordinance forbade the discharging of an air rifle, and if such gift to the son had been made under such circumstances without any instruction as to the use of the gun except in rural areas, and, had an accident occurred in the city, we might hold otherwise. But surely it cannot be said that giving an air rifle to a farm boy 11 1/2 years of age, under the circumstances as we find them in this case, discloses any negligence on the part of the father.
There are many things used by children that may be said to be unsafe when used for the purpose for which they are intended. A baseball, a baseball bat, a penknife, a Boy Scout hatchet, a bicycle, all have the capacity to injure the user or others in the course of their normal use. They are not, however, to be categorized as "dangerous instrumentalities." As was said by the Tennessee court in Highsaw v. Creech, 17 Tenn. A. 573, 69 S.W.2d 249, 252, "an air gun is not a dangerous instrumentality of itself, but is in fact a toy. * * * The fact alone that an injury may be inflicted by such a toy does not make of it a dangerous instrumentality in the sense that the term is generally used.
Although the present case is apparently one of first impression, two cases have been cited in the briefs which are said to be controlling in Tennessee. An analysis of these cases indicates they are not controlling. Highsaw v. Creech, 17 Tenn. App. 573, 69 S.W.2d 249 (1933) and Smith v. Salvaggio, 4 Tenn.Civ.App. 727 (1914), the cases relied upon, are situations involving parents' negligence for allowing minors to possess weapons, an air rifle in Highsaw and a .22 rifle in Smith. These cases are not in point with a situation involving a parent's negligence in failing to restrain a minor who has a known propensity to assault, except, as perhaps, as an indication there may be parental liability in some instances.
We think unquestionably that this is true. Then we are criticized for making the statement in arguendo in the opinion that had Mr. Alexander turned around when the shot was fired it could have put his eye out; that this constitutes no reason for the weapon being classified as a dangerous weapon because it is said that in Highsaw v. Creech, 17 Tenn. App. 573, 69 S.W.2d 249, the Court of Appeals held that an air rifle was not a deadly weapon when one was shot in the eye by a small boy with an air rifle and his eye put out. Of course, air rifles are classed as toys and are bought for small boys. As we see it, there can be no fair comparison at all to shooting one with a .20-gauge gun and a small boy in his play using an air rifle.