dissenting.
I respectfully dissent. It seems to me that reasonable minds might differ on both the question of Zuck’s negligence and whether his conduct was the proximate cause of the plaintiff’s injury. A jury question was therefore presented and in the absence of error it should stand.
The record would support the conclusion that Zuck not only permitted Rima to bring a hand gun (a .38 Smith & Wesson revolver) and ammunition for it into the tavern, but tacitly encouraged him to do so by agreeing to target the weapon for him in the basement of the establishment.
The courts of this country have uniformly recognized *10that a gun is a dangerous instrumentality. 56 Am. Jur., Weapons and Firearms, § 3, p. 992; 57 Am. Jur. 2d, Negligence, § 108, p. 459; Naegele v. Dollen, 158 Neb. 373, 63 N. W. 2d 165, 42 A. L. R. 2d 1099. Zuck was an expert and experienced with weapons because of his military service. Anyone who has had experience in the combat arms of the military knows that a hand gun is, from the viewpoint of inflicting accidental injury, considerably more dangerous than many other weapons.
The presence of such a weapon and ammunition on the person of a patron of a drinking establishment enhances the likelihood of an accidental injury while showing or demonstrating the weapon.
The opinion recites that Rima was not intoxicated. This may be true, but the record supports the conclusion that previous to the accident Rima had spent a large portion of the earlier part of the day in the tavern drinking and that he had, between the hours of 9:45 p.m. and about 12:30 a.m. when the accident occurred, consumed as many as five or six beers. It is naive to assume that the amount consumed had no effect upon Rima’s judgments or actions. The likelihood of accident is enhanced by the effect of alcohol upon the mind and hand of one who has been drinking most of the day even if he is technically sober.
The jury could conclude: (1) That the gun and ammunition would never have been in the tavern except for the proprietor’s tacit encouragement and express permission. (2) That the weapon was a dangerous instrumentality which a patron should not under any circumstances be permitted to bring into a tavern, much less be encouraged to do so. (3) That the proprietor should have anticipated the probability of accidental injury from the presence of the dangerous instrumentality in the hands of a patron even though he may have been technically sober. (4) That Zuck’s *11acts were negligent and that the accident would not have occurred except for that negligence. (5) That the brief departure of Rima from the tavern is not such an intervening cause as breaks the chain of causation starting with Zuck’s initial encouragement.
The majority opinion relies upon cases involving assault by a patron of a business establishment upon another patron. This is not a case of a deliberate shooting but an accidental one. Zuck may not have been required to anticipate an assault by Rima, but the possibility of an accidental injury even while showing the weapon could have been found by the jury to be reasonably foreseeable.
This case should not be decided as a matter of law. It is similar to Naegel v. Dollen, supra, where the proprietor of a hardware store permitted the manipulation of a shotgun in his place of business and a patron was injured. We there held that the proprietor was charged with the knowledge that a loaded gun is a dangerous instrumentality and that he is required to exercise the highest degree of care to prevent injury to others.