dissenting.
The jury, had the case been submitted, could have properly found these facts:
The Insured irresponsibly provoked a fight with his son-in-law and battered the son-in-law. The Insured’s son, armed with a gun, told his father to stop the battery.
*64The son had never before confronted his father. The Insured looked at his son and made a remark, the meaning of which is not clear: “you better use that or I will.”
The Insured then quit the fight and walked toward the front door of his house, neither advancing toward nor looking at his son. The son, standing at an elevated position and with the gun at his waist, fired the gun at the ground. The shot, fired accidently, hit and killed the Insured.
From facts the jury could have properly concluded it was not foreseeable that the son would shoot the Insured while he was retreating. Because, in my opinion, the jury should have determined the issue, I would reverse the judgment and remand the case for a new trial.
Harris v. Bankers Life, 222 Va. 45, 278 S.E.2d 809 (1981), supports my conclusion. Indeed, it was more foreseeable in Harris that a mother would stab a person who was physically abusing her child, than here that a docile son would shoot a father who was retreating.