Nestor

after stating the case as above, delivered the opinion of the court.

It is contended on the part of the plaintiff in error that the court below should have instructed the jury to return a verdict in its favor. The refusal of the court to do so was, in our opinion, clearly right. The evidence showed without conflict that the defendant in error was at the time that he was shot sitting on the upper deck of the steamer, near the captain’s cabin, reading. There was testimony going to show that on the day of the accident— which was July 1, 1902 — as well as the day before there had been much shooting by the passengers and others on board, with pistols, guns, and rifles, some of them running from one side of the boat to the other with their weapons, and there was testimony tending to show that during the time such shooting was going on the rifle with which the *441 defendant in error was shot had been carelessly left loaded on some grating on the deck of the steamer by a passenger called “The Lucky Swede,” after which it was picked up by a man named Quinn, who handled it so recklessly as to shoot the defendant in error, inflicting upon him a painful and serious injury. The case further…