Talmage v. Smith Sup. Ct. Of Mich.,

101 Mich. 370, 59 N.W. 656 (1894)

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Nature of the Case

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Facts

Talmage (P) and six or eight other children were playing on several roofs of sheds on Smith's (D) property. D ordered the children to get down, D ordered two more boys to get down from a second shed. Both started to get down as they were told, but before they could comply, D took a stick (two inches in width and sixteen inches long) and threw it at one of the two boys in view. The stick missed its intended target and struck P in the eye. P lost all sight in that eye. There was evidence that D threw the stick with the intent to hit Byron Smith (one of the boys on the roof), and not P. The trial court issued a set of jury instructions, and the jury rendered a verdict for P. D appealed on grounds that he did not intend to hit P and was only attempting to scare another boy away.