100 Tenn. 317 | Tenn. | 1898
This is an action for negligently injuring and killing a dog. It was commenced before a Justice of the Peace, and, on appeal, was tried in the Circuit Court, before the Court and a jury. There have been two trials, the first resulting in a mistrial, and the second in a verdict and judgment for $250, and defendant, Rapid Transit, Company, has appealed and assigned many errors.
The plaintiff was passing over this turnpike, returning from á nutting expedition into the country, in a conveyance with his two daughters. He had taken his gun with him, and also a favorite bird dog. The accident occurred about five o’clock in the evening. The dog was running along the turnpike, or thoroughfare, some one hundred and fifty or two hundred yards in front of the plaintiff’s vehicle, when he started across the tracks of the street car line, which were laid on the bed of the turnpike, some little birds flying up attracted his attention, and' he stopped in the center of the track, and, as some witnesses say, was in the act of £ £ setting ’ ’ the birds. The term £ £ setting, ’ ’ as used here, has a somewhat technical meaning, and means that he was ‘£ standing ’ ’ and intently looking in one direction. ' In dog parlance, therefore, £ £ setting ’ ’ means ‘‘standing,” and the attitude is also called £ £ pointing. ’ ’ While in this attitude a street car came up rapidly, and, some of the witnesses say, almost noiselessly, upon him, and ran over and
It was not error in the trial Judge to charge that the street car company must have sufficient employes on its cars to operate them in a careful manner, so as . to prevent damages or injuries to persons and animals that might go upon the track,
It was not error to charge ’ that, inasmuch as the street car track was laid on the roadway, and on the same level with it, that the dog was not a trespasser if he went upon the track, inasmuch as the dog was not improperly on the highway.
It was not error to tell the jury that if, after the dog was injured, his master killed him, under the honest belief that he was fatally injured, this would not prevent a recovery. The action in this case was for both the injury and killing, and if the jury should have found that the dog ought not to
It is said that the Judge should have told the jury that the motorman might rely- upon the keen sense of hearing, great alertness, intelligence, and active celerity common to dogs, and they might consider and weigh their own practical knowledge as to the nature, character and quality of dogs, and consider all these matters in reaching a verdict in the case. The request we think is too broad; unquestionably, the jury might take into consideration common knowledge and observation about the habits and qualities of dogs, but it was going too far to say that the motorman might rely upon the quickness and celerity of the dog, and thus absolve himself from all duty and care to prevent the accident, which is virtually what the request implies. The court sufficiently stated to the jury the rule applicable, if the dog appeared so suddenly and immediately in front of the car that it could not be stopped, and no precaution could have prevented the accident. The special request on this point was not necessary, nor as made was it correct.
Assignments are made which raise the question of the status of dogs before the law, and on what plane they are to be put, and how regarded. It has been held that the owner of a dog has such property in him as that he may maintain an action for killing or injuring him. Wheatly v. Harris, 4 Sneed, 468. Also, that he is the subject of
In Mullaly v. The People, 86 N. Y., 365, the Court said, very enthusiastically, that ‘ ‘ when we call to mind the fact that a small spaniel saved the life of William Grange, and thus changed the current of modern history, and when we consider the faithful St. Bernards, which rescue travelers caught in the storms which sweep over the crests and sides of the Alps, the claim that the dog is base in his nature is overthrown, and he cannot be left a prey to every person who chooses to steal or kill him. The rule of the common law was technical in the extreme, for while it was not larceny by it to steal a dog while living, it was larceny to steal his hide after he' was dead.”
Large amounts of money are now invested in dogs, and they are extensively the subjects of trade and traffic. They are the negro’s associates, and often his only property, the poor man’s friend, and the rich man’s companion, and the protection of women and
Much evidence is given in the case upon the question of the dog’s pedigree and ancestry. The objections made are, that these matters are attempted to be proven by general reputation, and this is characterized as hearsay. But the question of pedigree and ancestry is a .matter of common or general reputation, whether the question concerns horses, cattle, dogs, or men. The matter, from the very nature of things, depends upon reputation or common repute. It is shown that certain books are kept, and in them there is a registration of pedigrees kept up for the information of the public, not only as to horses, but also as to cattle and dogs. These are shown to be received as satisfactory evidence of pedigree in the same manner and upon the same idea as entries in family records of births, deaths, and marriages are received with regard to the human family. 18 Am. & Eng. Ene. L., 258; Flowers v. Haralson, 6 Yer., 494; Rogers v. Park, 4 Hum., 480; Swink v. French, 11 Lea, 79; Morris v. Swaney, 7 Heis., 591; Ford v. Ford, 7 Hum., 92. It is true, that in family records the entries in the books are usually made by the relatives and friends of the person, but inasmuch as dogs have no relatives competent to make entries for them, it is allowable for such entries to
Upon the general question as to the admissibility of evidence of the dog’s pedigree, and the qualities and performances of his ancestors, we think there can be no doubt but that such evidence is competent. It is certainly competent to show pedigree upon the question of value of horses, cattle, and even sheep and swine — their different strains of blood, and especially as to horses and cows it is competent to show the qualities of the sires and dams and more remote ancestry, as these matters enter largely into the question of value. It is a matter of common knowledge that the same questions enter in the consideration of the value of dogs, not only such as are kept for common use, such as guard dogs, shepherd dogs, Newfoundland dogs, but also such as are kept for sporting purposes, such as grey, blood, and fox hounds, bird dogs and others. There are high and low degrees among dogs as well as •among men, and while the common coon dog has his value, it is not the same as that of the trained bird dog or the trained bloodhound. It is a matter of common knowledge and observation that certain strains of blood among horses add materially, if they do not entirely fix their values, and so among cows and hogs and sheep, and even among chickens and turkeys. Different strains of . blooded horses are valuable because it is found that for generations the achievments of horses of that strain
Dogs of the grade of the dog that was killed, and with such pedigree, are shown by the proof to be worth from $500 to $1,000 in the market. It is also shown that this dog had had the distemper, and, under the proof, this added to his value one hundred per cent. It is attempted to show that this dog’s descent may not have been entirely pure, and it is intimated that he may have had terrier blood in him, but the only foundation for this inference
The question of pedigree is really important so' far only as it bears upon the question of value of the animal killed. But it is evident, on examining the record, that the' jury were not influenced by considerations of pedigree in fixing the damages, since they have named an amount below that fixed by any witness who placed a value upon the animal, based upon his pedigree, and adopted as their verdict the evidence given by the plaintiff and other witnesses of value, without regard to pedigree, and fixed the amount at the smallest sum named by him for the dog, taking in view his qualities, and in leaving out of view his ancestry or pedigree. The plaintiff fixes the value of the dog at $250, without any reference to his blood or lineage, and in this he is sustained. He describes him as a handsome dog, very fast, wide ranger, very stanch on his game and to the gun, thoroughly broken, a fine retriever from land or water, with an excellent disposition. He is shown also to have been a valuable, reliable yard and house dog, and to have made himself generally useful and almost indispensable to the plaintiff’s household.
With such an eloquent recital of the dog’s qualities, the jury could not, perhaps, have given less
Upon the whole case, we are of opinion that the defendant company was guilty of negligence in the killing of this dog; that his death could have been prevented by the exercise of proper care and diligence; that he was fatally injured by the car, and killed as an act of humanity by his owner, and the company is liable for the killing. As to value, it is placed by the jury at the lowest estimate made by any witnesses, and evidently withqut regard to his pedigree or the performances of his ancestors.
We are satisfied with the verdict and judgment, and it i^ affirmed with costs.