#### Edwin L. Foell, Appellant, v. Christ Rasmussen, Appellee.

(Not to be reported in full.)

Appeal from the Circuit Court of Christian county; the Hon. James C. McBride, Judge, presiding.

Heard in this court at the October term, 1914..

Reversed and remanded.

Opinion filed April 16, 1915.

*610Abstract of the Decision.

1. Appeal and eeeob, § 384 * -L^when objection essential to review. Evidence admitted without objection will not be reviewed on appeal.

2. Weapons, § 1*—when answerable for accidental discharge of gun. Where, while the plaintiff and defendant were hunting together, the latter’s gun, as he was turning in the direction of the plaintiff in order to shoot at a rabbit, was discharged to the plaintiff’s injury, when the defendant’s thumb, which was numb with cold, slipped from the hammer of. the gun, held that the accident was due to the negligence of the defendant in pointing the loaded weapon towards the plaintiff.

3. Weapons, § 1*—burden to show accidental discharge of gun. Where a person is injured by the discharge of a gun in the hands of and under the exclusive control of another, the burden rests on the latter to prove that he was without fault.

Statement of the Case.

Action on the case brought by Edwin L. Foell against Christ Rasmussen to recover damages for the loss of a leg caused by the discharge of a gun in the defendant’s hands. From a verdict and judgment in favor of the defendant, the plaintiff appeals.

The evidence showed that the appellant and appellee with others were hunting together during cold weather; that the former shot at and missed a rabbit, and that the appellee, who was within a few feet from and in plain sight of the appellant, turned to shoot at it, pulling back the hammer of his gun as he did so, when the hammer slipped from his numbed thumb and the gun was discharged, when it was in range of the appellant’s leg, inflicting a wound which necessitated amputation.

William A. Kane, for appellant.

John E. Hogan, for appellee.

*

See Illinois Notes Digest, Yols. XI to XY, and Cumulative Quarterly, same topic and section number.

Mr. Justice Thompson

delivered the opinion of the

court.