234 A.D. 112 | N.Y. App. Div. | 1931
The plaintiff Bessie M. Carlisle brought action to recover for personal injuries which she sustained from the bite of a dog owned by defendant Catherine Cassasa and harbored by her brother, the defendant Charles Cassasa. The plaintiff Joseph M. Carlisle brought a separate action against said defendants to recover for loss of services and expenses incurred in the surgical treatment of his wife, the plaintiff in the first action, and other expenses resulting from the injuries which his wife sustained. The actions, by stipulation, were tried together.
The plaintiff Bessie M. Carlisle resided with her husband at 416 Convent avenue, New York city, in a house owned by plaintiffs and in which they had resided for about twenty years. In the rear of the house was a yard sixteen by eighteen feet in dimension. Adjacent to the premises occupied by plaintiffs to the south, at 414 Convent avenue, was a house which, prior to the time when plaintiff’s injuries were inflicted, bad been occupied by the defendant Charles Cassasa and two or three of his sisters as a place of residence. In the rear of the house occupied by the defendants there was also a yard sixteen by eighteen feet in dimension. Between the yard in the rear of the plaintiffs’ premises and that of the defendants there was a tight, board fence seven feet nine inches in height, the boards of the fence standing perpendicularly. On July 7, 1927, at about fifteen minutes before noon, the plaintiff Bessie M. Carlisle had occasion to go into the yard in the rear of plaintiffs’ house for the purpose of adjusting some bath rugs which had been incorrectly hung by the plaintiffs’ maid. The plaintiff Bessie M. Carlisle testified that as soon as she had gone into her yard a huge police dog, owned and harbored by defendants, began to bark furiously and to paw against the tight, board fence separating the two yards, and that of a sudden two of the boards of the fence gave way and the dog rushed into plaintiffs’ yard, showing its white teeth aid with blazing eyes attacked plaintiff, grabbing her by the calf of the leg. When the dog first broke into the yard, plaintiff, realizing her danger, started to run to the door of her house with a view of escaping the dog’s attack. She was unable
We are of the opinion that the evidence was sufficient to justify the jury in finding that the defendants’ dog, prior to the accident, was vicious, and that, under the proven facts, the defendants knew or should have known of the vicious propensities of their
Dr. James E. Assing, called as a witness in behalf of plaintiffs, testified that he was a veterinarian and had been in the employ of the health department of the city for twenty-one years, and that among his duties in the health department was the examination of dogs, and that he had been engaged in that business for some thirty-seven years, during which time he had examined from four thousand to five thousand dogs a year; that it was a part of his duty to file a report shortly after making an examination; that on July 9, 1927, two days after plaintiff Bessie M. Carlisle was bitten, he made an examination of defendants’ dog, reading from the record, as: “ Wolf, gray, police.” The health department veterinarian was then asked as to whether or not he had examined the defendants’ dog on July 9, 1927, for viciousness, but, upon objection of counsel for defendants, he was not permitted to answer. Plaintiffs’ trial counsel then offered in evidence the veterinarian’s report of the examination of the defendants’ dog made on July 9, 1927, wherein the dog was described as “ vicious.” We are of the opinion that the court erred in denying plaintiffs an opportunity to show that the veterinarian made an examination of the dog as to its viciousness and in refusing to admit the veterinarian’s report in evidence. We do not think the examination made by the veterinarian two days after the accident was too remote, and if the dog was then vicious, he was probably vicious at the time of his attack upon plaintiff.
Dennis J. Dowd, called as a witness in behalf of plaintiffs, testified that he was a patrolman in the police department of the city of New York, and that on July 7, 1927, he was assigned to the health department as a patrolman; that his duties were to investigate complaints that came to the health department with reference to dog cases, and that on July 8, 1927, the day following plaintiff’s injuries, he made an investigation, which he filed in the department of health, as was his duty. Officer Dowd testified that he saw the dog which had attacked plaintiff at 414 Convent avenue on July 8, 1927, and looked at him. The court, under objection of counsel for defendants, refused to permit the officer to state as to
In our opinion the evidence was ample to show that the defendants’ dog was, in fact, vicious, and had been for so long a time prior to the injuries inflicted upon plaintiff that the defendants knew or should have known of the vicious propensities of their dog. The evidence shows that this dog, for three or more years, had been kept confined entirely in the back yard of the defendants’ premises surrounded by the board fence seven feet nine inches in height, or within the defendants’ house. There is no evidence that the dog was ever seen off the defendants’ premises. Plaintiff Bessie M. Carlisle testified that whenever she raised a window of her house the defendants’ dog would bark furiously and rush about the yard and claw the fence separating the defendants’ yard from that of plaintiffs in an effort to gain access to the plaintiffs' premises; that the slightest noise would arouse the dog. The plaintiff Joseph M. Carlisle testified that he had frequently seen the defendants’ dog, and that upon the least provocation he would bark furiously and rush about the yard with the hair upon his back raised. The very viciousness of the attack upon plaintiff Bessie M. Carlisle clearly demonstrates that the defendants’ dog was of a vicious and ferocious disposition, and that the jury would have been justified in finding, from the circumstances attending the attack that was made upon plaintiff, that the dog was vicious and ferocious. (Perrotta v. Picciano, 186 App. Div. 781, 783.) In the case of Muller v. McKesson (73 N. Y. 195, 199) the Court of Appeals wrote: “ It may be that in a certain sense an action against the owner for an injury by a vicious dog or other animal is based upon negligence; but such negligence consists not in the manner of keeping or confining the animal, or the care exercised in respect to confining him, but in the fact that he is ferocious ai®d that the owner knows it, and proof that he is of a savage and ferocious
John Freeman, called as a witness in behalf of plaintiffs, testified that for a year and a half or two years prior to the day when plaintiff’s injuries were inflicted, he had been accustomed to deliver groceries at the home of the defendants at 414 Convent avenue; that it was his custom, when he called with groceries, to ring the bell, and that someone “ answered the door,” and that he would then hear the dog bark. Freeman then testified: “ A maid would answer the door or whoever happened to be there, and she would say ‘ Wait till I put the dog away ’ and I would bring the stuff in; or else, they took the stuff from me at the door.” Counsel for the defendants moved to strike out what the witness had testified as to what the maid or whoever appeared had said, and the court granted such motion, with an exception to plaintiffs. We think the court erred in refusing to permit such testimony to stand. The court granted the motion to strike out the testimony on the ground that the maid or person was unidentified. Of course, the witness could not identify any particular person who had answered his call, more than to say that whenever he rang the bell he heard the dog bark, and whoever came to the door requested that he wait until the dog could be taken care of. Such request came from a person in charge of the premises, and we think clearly bound the defendants and indicated not only the viciousness of the dog but knowledge thereof on the part of the defendants. The grocery boy further testified that on some of the occasions one of the Cassasa sisters came to the door, the witness identifying one of the Misses Cassasa then in corut.
We conclude that the evidence of the plaintiffs, undenied, was sufficient to justify the jury in finding that the defendants’ dog was a vicious and ferocious animal, and that the defendants knew or should have known of the vicious propensities of their dog.
Finch, P. J., Sherman and Townley, JJ., concur; O’Malley, J., concurs in result.
In each case: Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.